Second
Chances
in the criminal justice system
Alternatives to Incarceration
and Reentry Strategies
commission on effective criminal sanctions
Project of the American Bar Association
Commission on Effective Criminal Sanctions
740 15th Street, N.W., Washington, DC 20005-1009
Copyright @ 2007 by the American Bar Association
Cataloging-in-Publication Data is on file with the Library of Congress
ISBN 13: 978-1-59031-995-6
ISBN 10: 1-59031-995-8
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For reprint inquiries, contact ABA Copyrights, (312) 988-6101, [email protected].
The resolutions of the Commission on Effective Criminal Sanctions contained herein were adopted on February 14, 2007 by the American Bar
Association House of Delegates as Association policy. The resolutions of the Justice Kennedy Commission were adopted by the ABA House on
August 9, 2004. The accompanying reports were not adopted and are therefore not Association policy, but are provided to explain the policy
resolutions.
Copies of this publication may be purchased for $20.00 each from the American Bar Service Center,
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amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Message from the Co-Chairs
Four years ago, in a dramatic speech at the ABA Annual Meeting in San Francisco, Supreme Court Justice
Anthony Kennedy challenged the legal profession to pay attention to what happens to people in this country
after they are convicted and sent to prison. Justice Kennedy raised fundamental questions about the fairness and
efficacy of a criminal justice system that imprisons so many people for such long periods of time, and that returns
them to their communities in worse shape than when they left. The adverse impact on communities of color
has been particularly severe. He pointed out that most states now spend more on their prisons than on their
schools, and concluded that “our resources are misspent, our punishments too severe, our sentences too long.”
He asked the ABA to help start a “new public discussion” about American sentencing and corrections policies
and practices.
The ABA responded to Justice Kennedy’s challenge. First through the Justice Kennedy Commission, and then
through the Commission on Effective Criminal Sanctions, we have engaged in a wide-ranging and penetrating
discussion of subjects as diverse as mandatory minimum sentencing, racial disparity, prosecutorial discretion,
executive clemency, the sealing of criminal records, and the legal and practical obstacles to offender reentry.
We have held hearings throughout the country, published policy reports, and advocated for systemic reform.
The work of these two commissions has been premised on a belief that the bar has a responsibility to see that
our criminal sanctioning system does not exacerbate the problem of crime, and that people who have satisfied
their court-imposed sentences are given a fair chance to build better lives in the community. Our work has
benefited from the generous support of the Open Society Institute.
This compendium of the two commissions’ work is entitled “Second Chances in the Criminal Justice System”
because it focuses not only on fairness and proportionality of punishment, but also on ways in which criminal
offenders may avoid or escape the permanent legal disabilities and stigma of a criminal record. It is that
possibility of starting over with a clean slate that we believe the system must make available to everyone who
wishes to choose a different way. It is that possibility to which our work is dedicated.
The reports contained in this volume represent the ground-breaking work of these two commissions. We present
it with pride, and with the hope that it will provide a blueprint for law reform efforts in the years ahead.
Stephen A. Saltzburg
James R. Thompson
December 2007
3
Commission on Effective
Criminal Sanctions
Table of Contents
Message from the Co-Chairs ........................................................................................................5
Introduction and Summary of Recommendations ....................................................................9
Commission Roster ..........................................................................................................................11
Reports to the House of Delegates, Midyear Meeting 2007
I. Alternatives to Incarceration and Conviction ....................................................................................................12
A.Recommendation ..........................................................................................................................................12
B.Report ..............................................................................................................................................................12
II. Improvements in Probation and Parole Supervision ........................................................................................22
A. Recommendation ..........................................................................................................................................22
B. Report ............................................................................................................................................................22
III. Employment and Licensure of Persons with a Criminal Record ......................................................................28
A. Recommendation ..........................................................................................................................................28
B. Report ............................................................................................................................................................29
IV. Access to and use of Criminal History Information ........................................................................................38
A. Recommendation ..........................................................................................................................................38
B. Report ............................................................................................................................................................38
V. Representation Relating to Collateral Consequences ........................................................................................42
A. Recommendation ..........................................................................................................................................42
B. Report ............................................................................................................................................................42
VI.Training in the Exercise of Discretion ................................................................................................................48
A. Recommendation ..........................................................................................................................................48
B. Report ............................................................................................................................................................48
Certificates of Rehabilitation and Other Forms of Relief from the ................................52
Collateral Consequences of Conviction: A Survey of State Laws
by Margaret Colgate Love and April Frazier
Report of the ABA Justice Kennedy Commission ......................................................................59
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
december 2007
Introduction and Summary of Recommendations
OSI grant was extended for a third year.
In 2006 the Commission held a series of hearings where it
heard from top criminal justice officials from across the country
about how the legal system in different jurisdictions supports or
discourages diversion and treatment programs, and reentry and
reintegration after conviction. Witnesses provided detailed information about programs and policies to steer less serious offenders into community corrections programs rather than prison, to
help offenders gain job skills and secure housing, and to neutralize the effect of a criminal record for employment and other purposes. The Commission was particularly impressed by alternative
sanctioning programs developed by prosecutors’ offices, and by
collaborative efforts among justice stakeholders under the auspices of the courts. The traditional advocacy model of criminal
justice has been transformed in some places to a problem-solving
approach that involves new roles for prosecutors, defenders, and
judges, to address the social and economic problems that drive
recidivism rates. The Commission also held a hearing in October 2006 entirely devoted to the subject of certificates of relief
from disabilities and of good conduct. Throughout, we made a
point of talking with those most directly affected by the criminal justice policies and practices we were studying: people with
criminal records.
Based upon the information gathered at the hearings and
other research, the Commission developed the policy recommendations that have now been approved as official ABA policy. A summary of these recommendations is attached. The
full black letter text and accompanying reports, as well as minutes of the Commission’s hearings, can be found on the Commission’s website at http://www.abanet.org/cecs.
The Commission’s recommendations represent a consensus,
no small feat given the diversity of personal and institutional
perspectives represented by its members. Even more remarkable, many of the Commission’s recommendations were endorsed by national organizations representing both the
prosecutor and defender communities. With support from these
organizations, the Commission hopes that its recommendations
will shortly become the basis for a reform agenda in jurisdictions
across the country that are attempting to come to grips with the
problem of over-incarceration and recidivism.
In the spring of 2007, the Commission organized a conference in Chicago on "Overcoming Legal Barriers to Reentry,"
which brought together policy-makers, government officials,
business leaders, people with criminal records and community
advocacy groups from across the country to explore ways to encourage employers to hire people with criminal records. At the
conclusion of the conference, the Commission approved a
broad policy recommendation urging jurisdictions to limit
The ABA Commission on Effective Criminal Sanctions has developed a series of policy recommendations that it anticipates will
provide the basis for a broad reform agenda to reduce reliance on
incarceration and remove legal barriers to offender reentry that
drive high rates of recidivism. These recommendations were approved in February 2007 by the ABA House, and have been endorsed by the National Association of Criminal Defense Lawyers,
the National District Attorneys Association, and the National
Legal Aid and Defender Association. They cover six areas:
• Community-based alternatives to incarceration that
avoid a conviction record
• Improvements in parole and probation supervision that
reduce revocations
• Employment and licensing of people with convictions
• Access to and use of criminal history information
• Representation relating to collateral consequences
• Training in the exercise of discretion
The effort by the organized bar that led to the development
of these recommendations began more than three years ago,
when Supreme Court Justice Anthony Kennedy challenged the
legal profession to pay attention to what happens to people
after they have been convicted and sent to prison: “When the
door is locked against the prisoner, we do not think about what
is behind it.” In a speech to the ABA Annual Meeting, Justice
Kennedy raised fundamental questions about the fairness and
efficacy of a justice system that disproportionately imprisons
minorities, forgets about them after they are imprisoned, and
returns them to their communities in worse shape than they
left it. He pointed out that most states now spend more on
their prisons than on their schools, and concluded that “our resources are misspent, our punishments too severe, our sentences
too long.” He asked the ABA to help start a “new public discussion” about American sentencing and corrections policies
and practices. In response to Justice Kennedy’s speech, ABA
President Dennis Archer established the Justice Kennedy Commission, whose report to the 2004 Annual Meeting was hailed
as providing a blueprint for sentencing and corrections reform.
In 2005 the ABA received a grant from the Open Society
Institute to continue the work begun by the Justice Kennedy
Commission through the Commission on Effective Criminal
Sanctions. The Commission committed itself to continuing
the public discussion begun by the Justice Kennedy Commission, and to developing a broad consensus among the prosecutors, defenders, judges, and academics that comprise its
members about what can and should be done to reduce reliance on incarceration and to reduce recidivism. In 2007 the
6
law enforcement or the public’s need to know. This recommendation met strong opposition from press organizations and
the business community, and was ultimately withdrawn from
the ABA House agenda. In the coming year, the final one
under its grant, the Commission will continue to work with
various ABA entities and other organizations on ways to ensure fair use of criminal records in the employment context.
access to certain criminal records when the risk that a person
will reoffend is greatly reduced. It based its recommendation
on social science research showing that employers and landlords are predisposed to reject a person with a criminal record
without regard to the actual risk that person may pose, and
notwithstanding laws that prohibit unreasonable discrimination against individuals with criminal histories. Recognizing
that steady employment and stable housing are the two most
reliable predictors of desistance from crime, this policy recommendation was designed to make some criminal history information unavailable when its relevance to employment and
housing is minimal, without interfering inappropriately with
Margaret Colgate Love
Consulting Director
December 2007
Summary of Policy Recommendations Approved By ABA House
I. Alternatives to Incarceration and
Conviction for Less Serious Offenders:
III. Employment and Licensure of Persons
with a Criminal Record:
• Jurisdictions should develop, with the assistance of prosecutors and others, community supervision programs
that allow all but the most serious offenders avoid incarceration and a conviction record.
• Community-based treatment programs ought to be made
available for persons whose crimes are related to substance
abuse and/or mental illness even if they have more than
one conviction or a history of minor violence, provided
they meet other qualifications for community supervision.
• Prosecutors, defenders and courts are encouraged to
form working groups to review, monitor, and improve
systemic alternatives to incarceration and conviction.
• Government agencies and licensing boards should develop and enforce policy on the employment of people
with convictions, including by the contractors and
vendors who do business with the state.
• Ordinarily, a criminal record should be considered disqualifying only if the offense conduct substantially relates to the particular employment or license, or
presents a present threat to public safety.
• Government agencies should inventory applicable employment restrictions and disqualifications; repeal or
modify those that are not substantially related to the
particular employment or that are not designed to protect the public safety; provide for an exemption process
and a statement of reasons in the event a person is
turned down for employment because of their criminal
record; and, provide judicial or administrative review of
a decision to deny employment based upon conviction.
• Jurisdictions should establish a judicial or administrative
process for mitigating or relieving collateral penalties and
disabilities imposed by law, and standards for determining
when an individual is entitled to complete relief from collateral consequences based upon fitness of character.
• Jurisdictions should work with private employer groups
to develop job opportunities for people with a criminal
record, and hiring incentives.
• Jurisdictions should make evidence of an individual’s
conviction inadmissible in any action alleging an employer’s negligence or wrongful conduct based on hiring
as long as the employer relied on a judicial or administrative order relieving disabilities or certifying rehabilitation.
II. Improvements in Probation and
Parole Supervision:
• Jurisdictions should develop meaningful graduated sanctions for violations of probation or parole (including
brief periods of community detention where appropriate)
• Non-criminal violations of supervision conditions
should result in imprisonment only when an individual
engages in repeated violations and lesser sanctions have
not been effective. In such cases, the length of incarceration should be that reasonably necessary to modify the
individual’s behavior and deter future violations. .
• Jurisdictions should distinguish between offenders who
would benefit from community supervision and those
who would not, and should reduce probation and parole
caseloads to improve the quality and intensity of supervision in appropriate cases.
• In judging the performance of probation and parole officers, consideration should be given to the number of individuals under an officer’s supervision who successfully
complete supervision, as well as to those who do not.
7
IV. Access to and Use of Criminal History
Information for Non-Law Enforcement
Purposes
• Jurisdictions should develop policies that limit access to
and use of criminal history records for non-law enforcement purposes, which balance the public’s right of access
to information against the government’s interest in encouraging successful offender reentry and reintegration.
• Jurisdictions should develop standards to maximize reliability and integrity of records in reporting systems, and
should allow individuals and the government to challenge the accuracy and completeness of those records.
• Jurisdictions should establish standards for and controls
over records reporting systems, and private screening companies should be restricted to the extent legally possible
from reporting records that have been sealed or expunged.
V. Legal Representation Relating to
Collateral Consequences:
• Jurisdictions should assist defenders in advising their
clients of the collateral consequences of conviction.
• Prosecutors should also be informed of collateral consequences that may apply in a particular case.
• Additional funds should be provided to public defender
and legal aid offices to enable them to assist offenders in
removing or neutralizing the collateral consequences of
conviction.
• Prison, probation and parole officials should be required
to advise offenders about how they may obtain relief
from collateral consequences.
VI. Training in the Exercise of Discretion:
• Prosecutors and all criminal justice professionals who exercise discretion in the justice system – including judges,
prosecutors, defense counsel, probation and parole offices, and correctional officials - should participate in
training that will give them greater understanding of
what elements should be considered in the exercise of
their discretion. Such training should be credited towards continuing education program requirements.
Commission on Effective Criminal Sanctions
Jorge Montes
Chair, Illinois Prisoner Review Board
319 East Madison Street, Suite A
Springfield, IL 62703
Co-Chairs
Stephen A. Saltzburg
George Washington University School of Law
2000 H Street, NW
Washington DC 20052
Chase Riveland
Orcas Island, Box 367
Deer Harbor, WA 98243
James R. Thompson
Winston & Strawn, Suite 4600
35 W. Wacker Drive
Chicago, IL 60601-9703
John K. Van de Kamp
Dewey Ballentine LLP, Suite 2600
333 South Grand Avenue
Los Angeles, CA 90071-1530
Members
Patricia C. Wald
2101 Connecticut Avenue, NW #38
Washington, DC 20008-1756
Melvin C. Breaux
Law Office of Melvin Breaux
103 Davis Drive
North Wales, PA 19454-1229
Jo-Ann Wallace
President and CEO, National Legal Aid & Defender Association
1140 Connecticut Ave. NW, Suite 900
Washington, DC 20036
Christopher D. Chiles
Prosecuting Attorney, Cabell County,
Suite 350, 750 5th Ave.
Huntington, WV.
Criminal Justice Section Liaisons
Hon. John C. Creuzot
Judge, Criminal District Court No. 4
Frank Crowley Courts Building
6th Floor, L.B. 41
133 N Industrial Boulevard
Dallas TX 75207
Robert M. A. Johnson
Anoka County Attorney
2100 Third Avenue
Anoka, MN 55303-2265
Albert J. Krieger
1899 South Bayshore Drive
Miami, FL 33133
Angela Jordan Davis
Washington College of Law
American University
1920 Wallace Avenue
Silver Spring, MD 20902
Neal R. Sonnett, P.A.
2 S. Biscayne Boulevard, Suite 2600
Miami, FL 33131-1804
Mark L. Earley
President/CEO, Prison Fellowship USA
44180 Riverside Pkwy
Lansdowne, VA 20176-8421
Consulting Director
Margaret Colgate Love
Law Office of Margaret Love
15 Seventh Street NE
Washington, DC 20002
Charles J. Hynes
Kings County District Attorney
350 Jay Street
Brooklyn NY 11201
Project Coordinator
Hon. Petra Jimenez Maes
Justice, New Mexico Supreme Court
P.O. Box 848
Santa Fe, NM 87501
April Frazier
American Bar Association
740 15th Street, N.W.
Washington, D.C. 20009
Hon. Theodore McKee
Judge, United States Court of Appeals for the Third Circuit
Room 20614 U.S. Courthouse
601 Market St.
Philadelphia, Pa. 19106
9
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Report to the House of Delegates
on alternatives to incarceration and conviction
Midyear Meeting, 2007
Recommendation
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to
encourage prosecutors and defenders, in close cooperation
with the courts, to create working groups that include other
stakeholders in the justice system to develop, review, monitor, and improve deferred adjudication/ deferred sentencing/diversion options.
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop, implement, and fund programs that prosecutors and other criminal
justice professionals can utilize to enable an offender to be
placed under community supervision in appropriate cases.
While the qualifications for entry into the programs will vary
among jurisdictions, generally the programs should be available when the offender:
Report
i) poses no substantial threat to the community;
ii) is not charged with a predatory crime, a crime involving
substantial violence, a crime involving large scale drug
trafficking, or a crime of equivalent gravity;
iii) has no prior criminal history that makes community supervision an inappropriate sanction; and
iv) is not currently on parole or probation, unless the supervising authority specifically consents.
I. Background
In the late 1970s, pessimism about the possibility of rehabilitating criminals ushered in an era of harsh prison sentences.1
Politicians on both the right and left embraced the work of
social scientists like Robert Martinson, who concluded that
correctional programming had little appreciable effect on recidivism rates.2 The gloomy conclusion that “nothing works”
to steer people away from crime both supported and advanced the “tough on crime” political agenda that dominated
the 1980s and 90s, with its reliance on long mandatory
prison sentences.
The War on Drugs that began in the mid-1980s, and the
deinstitutionalization of the mentally ill that was already well
underway, ensured that a large percentage of the people who
were sentenced to prison were substance abusers, mentally ill,
or both. The burden of these incarceration policies has fallen
primarily on the minority community: of the 2.2 million people now in our prisons and jails, almost half are African-American, and another 20% are Hispanic. One of the most painful
costs of incarceration is that one and a half million children in
the United States under the age of eighteen have at least one
parent in state or federal prison.3
In the past ten years there have been increasing doubts
about the efficacy of increased incarceration as a general crime
control measure, at least when unaccompanied by serious efforts to treat substance abuse and mental illness in the prison
population.4 During this period, much data has been gathered
concerning the economic and social costs of “mass imprisonment.”5 Two years ago, the Justice Kennedy Commission reported that “many prosecutors, judges, defense counsel and
legislators who have differing attitudes toward crime and punishment share a feeling that more incarceration and longer
sentences are not always in the public interest.”6
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to develop, and to support and fund prosecutors and others seeking
to develop, deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record for offenders who are deemed appropriate for community
supervision pursuant to the criteria set forth above.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to develop, support and fund programs that offer community-based
treatment alternatives to incarceration, including inpatient
treatment, to those offenders whose crimes are associated
with substance abuse and/or mental illness; and for whom diversion has been deemed appropriate pursuant to the criteria
set forth above.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to develop, support and fund prosecutors and other criminal justice
professionals seeking to develop programs to train law enforcement officers to recognize the signs and symptoms of mental
illness in order to facilitate the appropriate resolution by the
police in those situations.
10
different state jurisdictions12 that are experimenting with proWith more than two-thirds of those being released from
prison rearrested within three years of release,7 and 42% of
grams that offer less serious offenders a chance to avoid prison
and a conviction record, and with innovative community-based
parolees returning to prison or jail within 24 months of their reinterventions for drug-related crimes. We learned that proseculease,8 policy makers and law enforcement practitioners alike
are re-thinking the practice of incarceration divorced from eftors have been particularly effective in many jurisdictions in adforts to rehabilitate. The realization that 650,000 prisoners are
vocating for diversion and deferred adjudication programs,
returning each year to the communities they left, unimproved
which enable offenders to avoid incarceration and to be placed
by their experience in the penitentiary, has inspired even some
under community supervision. Often these programs are foelected officials to take a new look at the old issue of rehabilitacused on individuals with substance abuse problems or mental
tion.9 At the same time, social scientists and law enforcement
illness, or both, who need treatment. (A number of these programs are described in the third section of this report.)
practitioners are discovering that some things do “work” to turn
But we also learned that neither researchers nor practitionan individual away from crime, under the right conditions.10
ers
have reached any firm conclusions about which sanctions
The Commission’s name reflects the growing public appreor programs reduce recidivism in the
ciation of the need to develop cost-effecmost cost-effective manner. The Urban
tive sentencing strategies that take into
Institute’s Nancy LaVigne testified before
account not just the short term goal of
the Commission in Chicago about the
protecting the public by imprisoning peotypes of programs that have been shown
ple who break the law and threaten the
The realization that
to result in reduced re-arrest rates, but
safety of the community, but also the
she
cautioned against extrapolating from
longer term goal of helping offenders avoid
650,000 prisoners are
these results because researchers have
future criminal behavior, thereby reducing
found that the effectiveness of particular
the number of future victims of crime. Soreturning each year to the
programs can depend upon unquantificial service and public health agencies will
able variables relating to the administraplay a role in developing and implementcommunities they left,
tion of the program. In other words,
ing these sentencing strategies, as will law
from Ms. LaVigne we learned that some
enforcement agencies. But lawyers have
unimproved by their
programs have worked in some places,
the primary responsibility for crafting and
but that the experts are still undecided as
administering an effective sanctioning polexperience in the
to what kinds of programs are most likely
icy, whether it be at the legislative level or
to
work in all places.13
in a county prosecutor’s office. The overpenitentiary, has inspired
all goal is to produce sanctions that are
Because of continuing uncertainty
more effective for the families and chilabout what works to reduce recidivism
even some elected officials
dren of criminal offenders, more effective
and what does not, the Commission’s recfor their communities and for their vicommendations
on alternative sentencing
to take a new look at the
tims, more effective for the criminal law
strategies deal as much with process as
practitioners who are committed to makwith the actual content of programs. Our
old issue of rehabilitation.
ing the justice system work fairly and effifirst recommendation is couched in genciently, and more effective in changing the
eral terms, but is actually aimed at enlives of the people we label “criminals.”
couraging prosecutors and other criminal
justice professionals to take a leading role
II. Policy Recommendations
in developing programs to enable offenders to avoid incarceraIn exploring what constitutes an effective sanction, we began
tion and to be placed under community supervision.14 Our
with the principles enunciated by the Justice Kennedy Comrecommendation recognizes that prosecutor-developed promission that:
grams, which will find widespread community support, are
likely to exclude from consideration people charged with cer(1) Lengthy periods of incarceration should be reserved
tain very serious offenses (“a predatory crime, a crime involvfor offenders who pose
ing substantial violence, a crime involving large scale drug
the greatest danger to the community and who comtrafficking, or a crime of equivalent gravity”) as well as those
mit the most serious offenses.
who pose a risk to public safety or whose record makes them
(2) Alternatives to incarceration should be provided
otherwise inappropriate for community placement. Offenders
when offenders pose minimal
who are not charged with one of the excluded crimes, and who
risk to the community and appear likely to benefit
are not excluded under one of the other two rubrics, should be
from rehabilitation efforts.11
eligible for community placement, and for community-based
treatment programs, diversion and deferred adjudication.
One of the factors that prosecutors, judges and others inIn order to develop a broader perspective on the different “alternatives to incarceration” that might be recommended, the
volved in making community supervision decisions may take
Commission decided to find out what was actually being tried
into account is the impact of incarceration on families. The
in the field. At hearings in Washington, D.C., and Chicago in
increase in the female prison population in particular poses an
the Spring of 2006, we heard from officials from a number of
increasing risk to family stability, since women are typically
11
Therefore, when a deferred adjudication/deferred sentencthe caretakers of children.15 In some cases, incarceration of a
ing/diversion option requires a defendant to enter a guilty plea
parent will have a deleterious effect on children and family reas a condition of participation, such programs should also offer
lationships, and thus on the community as a whole. Although
the incentive to defendants and their counsel of having the
some children live with a relative during their parent’s incarcharges dismissed and the record expunged if the terms of proceration, many enter the foster care system because no family
bation
are successfully completed, so that collateral consemember is available to care for them In many cases it would
quences
will not be triggered. Defenders are often placed in a
be better for the children if they could stay in close touch with
difficult
position
in counseling their clients about whether to
their caretaker parent in their own community. And, regainparticipate
in
a
treatment
program. Frequently the terms of
ing custody of their children and re-establishing family relaprobation are quite strenuous, and may include extended peritionships is a major task for women offenders coming home
ods of time in in-patient drug treatment, and the possibility of
from prison. On the other hand, there may be cases where
failure or drop-out is very real.16 On the other hand, the possichildren would benefit from being separated from an abusive
or addicted caretaker parent.
bility that their client could end up with no record of convicThe fact that a community sanction
tion – and in some jurisdictions no
program developed in a particular jurispublicly accessible record at all – may
diction might be generally designed to
make defenders see their way clear to enexclude those charged with certain kinds
couraging their clients to enter a plea and
of offenses does not mean that a prosecuget the treatment they need.17
The Commission urges
tor could not occasionally choose to seek,
The Commission urges jurisdictions not
or a court choose to impose, a commuto exclude people from consideration for
jurisdictions not to
nity-based sanction notwithstanding a
community-based treatment programs
particular individual’s ineligibility for the
solely
because they may have more than
exclude people from
general program. ABA sentencing policy
one conviction, or some history of minor
provides that a prison sentence should be
violence. In too many cases, treatment
consideration for
mandated by law for a particular offense
programs are limited, by statute or by polonly in the narrow circumstances where
icy, to the so-called “non-violent first ofcommunity-based
“the legislature can contemplate no mitifender.” Anyone who has dealt with
gating circumstance that would justify a
addiction
and mental illness understands
treatment programs solely
less restrictive sanction.” ABA Stanthat relapse is a predictable part of getting
dards for Criminal Justice on Sentencing,
well, and that slips are to be expected and
because they may have
Standard 18-3.11(c).
should be tolerated to some degree. ReSimilarly, the provision that generally
stricting recovery programs to people who
more than one conviction,
an offender should be ineligible for comhave had no prior run-ins with the law, or
munity supervision when he/she is not
who have never gotten into a bar fight or
or some history of minor
currently on parole or probation, unless
street altercation, is to rule out a large popthe supervising authority specifically conulation that could benefit from a second
violence.
sents to community supervision recogchance. The resolution adopts no exclunizes the practical reality that community
sionary criteria, but provides instead that a
supervision is not likely to be available if
person should be ineligible for community
a parole board or a judge with authority
supervision only when his/her offense conover probation has decided to return an offender to prison or
duct and/or criminal history makes such a sanction inapproprijail. The provision encourages judges to consult with probaate. This permits flexibility and individualized considerations
tion and parole officials to determine what sanction for a new
of offenders and the charges brought against them, not ruling
offense will best serve the offender while protecting the safety
out of consideration categorically anyone because of the nature
of the community, and recognizes that judges may impose a
of the offense or the extent of the person’s criminal record.
community supervision sentence when doing so does not result
The Commission also heard testimony about the beneficial
in any conflict between an existing probation or parole status.
effects of having law enforcement personnel trained to recogThe testimony also suggested to the Commission that comnize the signs and symptoms of mental illness in order to facilimunity-based sanctioning programs will be most effective if
tate appropriate handling of their cases and, in some instances,
they hold out the prospect of the offender’s ending up with no
to avoid unnecessary arrests. Police are generally the first on
criminal record. The collateral consequences triggered by a
the scene when a person with mental illness creates a disturconviction record make it very difficult for offenders to get a
bance or commits a crime; they have the discretion to deterjob or housing and, generally, to put their lives back on track
mine whether to arrest, refer the person to community based
after their court-imposed sentence has been served. Sometreatment services, take other action as might be appropriate.
times the collateral consequences of conviction are far more
We recommend that all jurisdictions provide this training.18
severe than the direct ones, and it is therefore of considerable
The Commission recommends that prosecutors and defendconcern to defenders, in assessing whether to recommend a
ers, in close cooperation with the courts, create working groups
guilty plea to their clients, whether their client will end up
that include other stakeholders in the justice system to review,
with a felony conviction on their record.
monitor, and improve systemic alternatives to incarceration
12
for the administration of several statutory diversion programs
that allow certain less serious offenders to avoid a conviction
record if they successfully complete a community-based treatment program in one of five Community Correction Centers
located around the state.21 Any person who is eligible to be
placed on probation, or who is given a “judicial transfer” sentence to DCC for a “target offense,”22 may upon completion of
probation have the charges dismissed and the record expunged. DCC Director David Guntharpe testified that offenders may be placed in one of several different programs,
including community-based residential treatment centers,
whose goal is to encourage offenders to change the way they
relate to the world around them.23 Still in its early stages, the
residential treatment center program has already resulted in a
drop in the recidivism rate among participants from 38% to
31%, and its administrators expect much greater reductions as
more personnel are trained.24 DCC also offers non-residential
probation services, including community-based substance
abuse and mental health treatment services, day reporting centers, intensive supervision, and drug courts.25 Once participants successfully complete their required program, DCC
issues a certificate of completion and in addition a draft order
to submit to the court to have the charges dismissed. Once
the charges are dismissed offenders are eligible to have the
record expunged (“sealed”), as long as they have no more than
one prior felony, and that prior felony is not a serious violent
offense.26 The Arkansas Department of Community Corrections also has a Special Needs Unit for dually-diagnosed offenders who have records of substance abuse, mental health,
and/or medical issues. The Arkansas program operates within
a therapeutic community model, and it has seen the recidivism
rate drop to 25%.
The Arkansas DCC has committed itself to reducing
recidivism rates among the population that comes through its
programs. Its efforts extend to assisting “graduating”
probationers in obtaining an expungement of their criminal
record.27 The DCC has evidently been successful in persuading
the Arkansas legislature that its efforts to facilitate offender
reentry are cost-effective, because it has been generously funded
and otherwise supported in its efforts to approach the problem of
recidivism in a comprehensive manner. The governor has also
been supportive of its efforts, according to Milton Fine, Legal
Counsel to Governor Huckabee, who testified to the governor’s
interest in offender reentry.
Connecticut is another state that has given high priority to
the development of community-based alternatives to incarceration. William Carbone, Executive Director of Court Support
Services Division in the State of Connecticut Judicial Branch,
told the Commission that since the 1980s Connecticut has implemented community-based alternatives so that prison, the
most costly punishment option, becomes the option of last resort. The Office of Alternative Sanctions in the Judicial
Branch now serves more than 6,000 offenders daily in a
statewide continuum of treatment, services and communitybased monitoring for both pre-trial and sentenced offenders
placed on probation with an annual operating budget of over
$41 million. At each Connecticut court location, offenders
are screened to determine if they are appropriate for alternative programming, and the Office of Alternative Sanctions
and conviction. The Commission heard from many witnesses
that systemic change is necessary, both in the law and in attitudes, and that change comes fastest when all key stakeholders
within the criminal justice system work together. Edwin Burnett, Public Defender for Cook County (IL), emphasized the
importance of all stakeholders’ being at the table in developing
the policies in order for them to succeed.19 This theme was
also echoed by District Attorneys Michael Schrunk, Multnomah County (OR), and Charles “Joe” Hynes, Kings County
(Brooklyn, NY), and others who stated that prosecutors, defenders, and the court system must work collaboratively to reduce recidivism. A good example of such a partnership is the
Brooklyn District Attorney’s ComALERT (Community and
Law Enforcement Resources Together) program, which provides substance abuse treatment and transitional employment
and counseling to approximately 1,000 formerly incarcerated
inmates each year. When such collaborative working groups
meet on a regular basis, they can foster continuous evaluation
and improvement of programs, account for a variety of viewpoints, and provide an opportunity to create better working relationships among all participants in the justice system.
III. Field Program Notes and Findings
The Commission’s overall impression from the prosecutors, defenders, judges, and corrections officials who appeared before
it, is that in most state jurisdictions stakeholders in the criminal justice system are working hard and resourcefully to manage what amounts to a public health crisis. Substance abuse
and mental illness eat up the lion’s share of criminal justice
budgets and skew the priorities of the criminal justice system.
Officials from every jurisdiction admitted that an overwhelming portion of their cases involved elements of substance abuse
and mental illness. While only 20% of state prison and jail
populations are charged or convicted of a drug offense, a much
higher percentage of crimes are related to substance abuse.
Cook County (IL) Public Defender Edwin Burnett reported
that almost 70% of crimes in the county are drug-related, and
82% of those arrested tested positive for drugs. Moreover, jails
and prisons have become the institution most likely to house
the mentally ill. The Cook County jail holds the largest number of institutionalized mentally ill people in Illinois: 1,000 of
the 11,000 people confined there have been diagnosed as mentally ill.20 At the March 31 Commission hearing, Judge Paul
Biebel, Presiding Judge of the Criminal Division in Circuit
Court of Cook County, testified that 16% to 20% of the Illinois prison population have mental health problems. The
Women’s Program at the Cook County jail reported that 80%
of its clientele have mental health issues, often resulting from
abusive family relationships.
While the Commission was impressed and encouraged by
the energy and ingenuity of the criminal justice professionals
on the front lines, it observed that in some states the legislature has been more helpful than in others in creating a structure conducive to developing community-based treatment
programs, and has funded those programs comparatively generously. Arkansas and Connecticut stand out in this category.
Since 1993, Arkansas has had a separate Department of
Community Correction that is independent of the state system. In cooperation with the courts, the DCC is responsible
13
opportunity to successfully complete drug treatment and avoid
provides recommendations to the sentencing judge. Programs
prosecution. Multnomah County District Attorney Mike
are designed for first-time offenders, for chronic offenders who
Schrunk testified that the offender must plead guilty or no
would otherwise be faced with a prison term, for substance
contest and meet other eligibility requirements in order to be
abusers and those with mental health issues, domestic vioadmitted
into the program. The STOP program is typically 12
lence, school violence, and hate crimes. Every court location
to
15
months
in duration and provides treatment, random drug
in the state has access to mental health and substance abuse
testing,
and
regular
court appearances before the STOP judge.
evaluations and outpatient treatment through a specialized
Upon
satisfactory
completion
of the program, the court will
network of advanced behavioral health services.
dismiss
the
charges
with
prejudice.
For Connecticut’s more risky and chronic offenders, an AlThe District Attorney’s office also sponsors Project Clean
ternative Incarceration Center offers daily group programming
Slate, through which offenders who have served their sentence
for more than 1,200 pre-trial and sentenced offenders in the
are given an opportunity to have their records expunged by
areas of drug abuse, anger management, employment, and comthe court. In Multnomah County, expungement requests are
munity service. In addition, the Office of Alternative Sanctions
brought to the court by the DA’s office, and the court generally
has 450 residential treatment beds for offenders in need of ingrants any request upon the prosecutor’s recommendation. Mr.
patient care. The inpatient programs can range from 30 days to
Schrunk testified that he regards expungement as a critical
over one year, providing services ranging from substance abuse
service for former offenders, since a conviction record can
to halfway houses for the youthful offender programs. About
hinder them in getting jobs and housing.31 He recommended
two-thirds of offenders successfully completed the programs offered by the Office of Alternative Sancthat the Commission advocate for a
tions, and the programs have been shown
national standard on record-clearing.
to produce lower recidivism rates among
In all of the states that the Commission
their participants.28
heard from, prosecutors take advantage of
laws that authorize diversion of offenders
In New York and Oregon, prosecutors
In all of the states that
into probation programs, with the promise
have taken the lead in developing drug
of
a clear record upon successful completreatment and community corrections
the Commission heard
tion. In Maryland, prosecutors may allow a
programs. The Kings County (Brooklyn,
defender to obtain “probation before judgNY) District Attorney’s office offers a
from, prosecutors take
ment” (“PBJ”) to avoid a criminal convicwide range of rehabilitative and education. The court may defer judgment and
tional programs designed to reduce readvantage of laws that
place a defendant on probation subject to
cidivism and provide the defendant with
reasonable conditions, if (i) the court finds
rehabilitative, educational and service
authorize diversion of
that the best interests of the defendant and
opportunities that will result in a disthe public welfare would be served; and (ii)
missal of the new arrests. District Attoroffenders into probation
if the defendant gives written consent after
ney Joe Hynes has developed numerous
determination of guilt or acceptance of a
programs aimed addressing the underlyprograms, with the
nolo contendere plea.32 If probation is sucing issues behind the criminal behavior,
such as substance abuse, mental health iscessfully
completed, the court discharges
promise of a clear record
sues, and lack of job opportunities. Kings
the defendant from probation without judgCounty offers felony diversionary proment of conviction, and such discharge “is
upon successful
grams through the Brooklyn Treatment
not a conviction for the purpose of any disCourt and the Mental Health Court, and
qualification or disability imposed by law
completion.
many of the programs are available to ofbecause of conviction of a crime.”33 The
fenders with prior convictions. The
person discharged from probation may also
DTAP program (described in the Justice
petition the court for expungement of poKennedy Commission Report) specifilice or court records relating to the charges
cally targets repeat felony drug offenders
after a three-year waiting period, as long as
who are facing lengthy prison term, and makes exceptions for
the petitioner has no subsequent offense that involved a possible
some violent offenders with the victim’s consent.29 The Dissentence of imprisonment.34 In addition, under Maryland law,
trict Attorney’s TADD Program (Treatment Alternatives for
judges have sentence revision authority for five years after impoDually Diagnosed Defendants) diverts mentally ill persons
sition of sentence, and may reduce the sentence to “probation
charged with felonies and misdemeanors from incarceration in
before judgment” in order to accomplish expungement of the
all of Brooklyn’s criminal courtrooms. Kings County also ofcriminal record. Baltimore States Attorney Patricia Jessamy tesfers ten diversionary programs and two specialty courts for mistified the she has available several community corrections prodemeanor charges.30 Brooklyn has seen serious crime drop
grams, including a drug court.
overall by 75% from 1990 to 2005.
In Michigan, according to Saginaw County DA Michael
The prosecutor’s office in Multnomah County (OR) offers
Thomas, prosecutors are beginning to recognize the importhe Sanction Treatment Options Progress (STOP) Program to
tance from a public safety perspective of keeping less serious
persons charged with criminal possession of relatively small
offenders from going to prison through diversion programs,
(personal use) quantities of a controlled substance the
and of helping those who have gone to prison reenter the
14
community. Yet reentry concepts are relatively new ones. Mr.
Thomas, who co-chairs the Reentry Committee of the National District Attorneys Association with Ms. Jessamy, noted
ruefully that “You have to explain reentry to most prosecutors.”
Kansas recently enacted a drug treatment program for nonviolent offenders charged with drug possession, called Senate
Bill 123.35 The program provides up to 18 months of drug
treatment through state-approved community providers, and
subsequent intensive supervision by a probation officer who assists with job training, housing, and other social services. An
innovative aspect of Senate Bill 123 is that it recognizes that
relapse is a part of recovery, and a person is eligible for the program more than once so long as he or she is charged with a
non-violent drug possession offense. One shortcoming of the
program is that the offender still ends up with a criminal conviction upon completion of the program. (Kansas does, however, offer judicial expungement to most felony offenders after
a waiting period.)
Many jurisdictions have developed diversion programs for
mentally ill offenders. The Commission heard from three
jurisdictions that have established Mental Health or
Community Courts to meet the special needs of mentally ill
offenders, Kings County (NY), Cook County (IL), and
Multnomah County (OR). The creation of diversion programs
is very important to this population because a conviction may
render them ineligible for much-needed government assistance
programs, such as Medicaid, which compromises their mental
health treatment programs.
Community Courts are also being used in many jurisdictions. Multnomah County (OR) established the first Community Court in 1998 to target offenders charged with
quality-of-life crimes that diminish citizens’ pride and sense of
safety in their neighborhoods. The goal of this court was o
provide the offender with underlying services to address the
issues that led them into the criminal justice system.36 When a
person is arrested for a non-violent, non-traffic misdemeanor
or violation, he or she is cited for arraignment in Community
Court by the arresting officer. At arraignment, the person may
decide to enter the Community Court program or the
traditional trial docket. If the person chooses Community
Court, a member of the social services team interviews and
assesses him or her for social services needs. During
assessment, the social services staff may make referrals to social
services such as Oregon Health Plan, state public assistance,
mental health or drug and alcohol counseling. The
Community Court judge receives the social service assessment
and may assign the person to social services, community
service, or a combination of both as a part of the Community
Court sanction. Once the person completes the assignment,
the case is closed, and the charges are dismissed.
The Red Hook Community Court in Brooklyn, New York is
a shining example of an innovative community based program.
Red Hook Judge Alex Calabrese told the Commission how the
court was born in response to a community tragedy, the death
of a popular school principal in the cross-fire of a drug gang
fight. Red Hook is a multi-jurisdictional court where one
judge has jurisdiction over all of the issues facing a criminal
defendant, including housing and domestic matters. More importantly, the court seeks to address the problems that led to
the defendant’s criminal behavior, which may include addiction, homelessness, lack of education, or mental health issues.
A typical sentence may include mandatory drug treatment, job
training, adult education classes, community service, or a combination of these services.
One of the pioneering aspects of Red Hook is that it offers
people in the community the opportunity to obtain social services even if they are not charged with a crime. Because the
court has a single focus, it is able to focus on prevention, by
providing social services in order to help troubled young people avoid continued interaction with the criminal justice system. The Red Hook court participates in community
outreach, even sponsoring a local youth baseball league. The
Kings County District Attorney and the Legal Aid Society
both sponsor and coach local teams. Red Hook’s idea of engaging the community to assist with crime prevention and to
solve local problems before they end up in court is quite impressive and has made a dramatic change in the attitudes of
the community of Red Hook toward the justice system.
Conclusion
The testimony taken by the Commission, and its field findings, establishes the beneficial effects, in terms of reducing recidivism, of programs providing alternatives to incarceration
and a conviction record. These programs seem to be particularly effective when they are initiated by a prosecutor’s office,
or when they are the product of working groups composed of
prosecutors as well as defenders. The Commission believes
that these programs, whether they are denominated diversion
or deferred adjudication or some other name, should be open
to all but the most serious offenders. The Commission also
believes that if these programs become more widely known
they can be emulated to good effect across the country, and
that this will not only reduce the prison population but will
also reduce the incidence of criminal behavior and enhance
public safety.
Respectfully submitted,
Stephen A. Saltzburg, Co-Chair
James R. Thompson, Co-Chair
February 2007
Endnotes
1. See, e.g., Marc Mauer, RACE TO INCARCERATE at 40-54 (revised
and updated, 2006).
2. See, e.g., Douglas Lipton, Robert Martinson, and Judith Wilks,
The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies (Praeger Press, 1975). A series of articles in the popular
press by Professor Martinson popularized the idea that “nothing works”
to reform criminals, and that society’s only hope of reducing crime lies
in the deterrent value of harsh prison sentences (or death). See, e.g.,
Robert Martinson, “The Paradox of Prison Reform,” The New Republic,
166, April 1, 6, 15 and 29, 1972; Martinson, “What Works? - Questions and Answers About Prison Reform,” The Public Interest, Spring
1974, at 22-54. In 1984, the United States Supreme Court noted that
“Rehabilitation as a sound penological theory came to be questioned
and, in any event, was regarded by some as an unattainable goal for
most cases the trend.” See Mistretta v. United States, 488 U.S. 361, 363
(1989), citing Norval Morris, The Future of Imprisonment 24-43
15
Bureau of Justice Statistics, Probation and Parole in the United States,
2005, http://www.ojp.usdoj.gov/bjs/pub/pdf/ppus05.pdf.
7. Bureau of Justice Statistics, Recidivism of Prisoners Released in
1994, June 2002, NCJ 193427
8. Reentry Trends in the U.S.: Success rates for State Parolees, Bureau
of Justice Statistics, available at http://www.ojp.usdoj.gov/bjs/
reentry/success.htm. See also Amy Solomon, Does Parole Supervision
Work? at 27(Urban Institute 2005), citing Glaze, L.E. and S. Palla, Probation and Parole in the United States, 2004., Bureau of Justice Statistics Bulletin 2005 (46% of parolees do not complete term successfully)
9. See Jeremy Travis, BUT THEY ALL COME BACK: FACING THE
CHALLENGES OF PRISONER REENTRY (THE URBAN INSTITUTE, 2005);
Joan Petersilia, WHEN PRISONERS COME HOME: PAROLE AND PRISONER
RENTRY (Oxford University Press, 2004).
10. See Joan Petersilia, J. What Works in Prisoner Reentry? Reviewing
and Questioning the Evidence. Federal Probation. Volume 68, Number 2
(2004), Available at http://www.uscourts.gov/fedprob/
September_2004/whatworks.html; Steve Aos, Marna Miller, and Elizabeth Drake, Evidence-based Adult Corrections Programs: What Works and
What Does Not (2006).
11. Justice Kennedy Commission Report, supra note 4 at 9.
12. Witnesses from Arkansas, Connecticut, Maryland and New York
(Brooklyn) testified in Washington, D.C. on March 3, 2006. Witnesses
from Illinois (Chicago), Kansas, Michigan, and Oregon testified in
Chicago on March 31, 2006. Notes from both hearings and a list of
witnesses are posted at http://www.abanet.org/cecs. Every state delegation included at least one prosecutor (though Arkansas DA H.G. Foster
was unable at the last minute to attend the hearing in Washington, and
so did not testify in person).
13. For example, while boot camps and other “shock” incarceration
programs have generally not been successful in reducing recidivism, the
boot camp administered by the Cook County Sheriff ‘s Office (which
several commissioners visited) has a solid record of accomplishment,
possibly because of the continuity of services after “graduation” and sustained aftercare in the community. According to Ms. LaVigne, longterm residential drug treatment programs that are based on a
therapeutic model (such as the Brooklyn DTAP program and the
Arkansas Community Correction Centers described infra) have been
shown to be quite successful in dissuading individuals from criminal activity. Most diversion programs, including drug courts, have not been
subjected to rigorous social science analysis because of the difficulty of
collecting data on participants. Faith-based programs have been particularly difficult to study because of the absence of data.
14. We use the term “incarceration” to refer to a secure jail or penitentiary-like environment, in contrast to “community supervision,”
which refers to a range of community-based custodial options (including
half-way houses, community corrections centers, drug treatment facilities, and even home detention), which permit sentenced defendants (or
defendants who have been deferred to probationary status) to remain
connected to their own communities and families, even if they are not
entirely free to come and go at will. The term “imprisonment” is often
used more broadly to refer to both incarcerative and community-based
custodial placements. See, e.g., Todd Bussert, Peter Goldberger, and
Mary Price, “New Time Limits on Federal Halfway Houses: Why and
how lawyers challenge the Bureau of Prisons shift in correctional policy
and the courts’ response,” Criminal Justice Magazine (Spring 2006)(describing litigation over efforts by the federal correction al authorities to
limit their own ability to designate sentenced offenders to community
corrections centers as “places of imprisonment” under 18 U.S.C.
(1974), and Frederick Allen, The Decline of the Rehabilitative Ideal
(1981).”) In upholding the federal sentencing guidelines, which gave
little weight to such factors as amenability to treatment, personal and
family history, previous efforts to rehabilitate oneself, or possible alternatives to prison, the Supreme Court cited a Senate Report that “recognized that the efforts of the criminal justice system to achieve
rehabilitation of offenders had failed.”
3. “In 1999 an estimated 721,500 State and Federal prisoners were
parents to 1,498,800 children under age 18.” U.S. Department of Justice, Bureau of Justice Statistics, August 2000, NCJ 182335.
4. The Justice Kennedy Commission analyzed data from a number of
state jurisdictions and concluded that “It is not even clear that the increased use of incarceration has enhanced public safety, although lawmakers for twenty years have acted in reliance on the claimed
crime-preventive effect of harsh and certain punishments. . . . The
numbers do suggest . . . that there may well be an over-reliance on incarceration in some criminal justice systems, and there is reason to
doubt whether constantly increasing the use of incarceration is cost effective.” Report of the ABA Justice Kennedy Commission at 20, 21.
http://meetings.abanet.org/webupload/commupload/CR209800/newslet
terpubs/JusticeKennedyCommissionReports_Final_081104.pdf. See also
Incarceration and Crime: A Complex Relationship by Ryan S. King,
Marc Mauer, and Malcolm C. Young, available at http://www.sentencingproject.org/pdfs/incarceration-crime.pdf. A report of the Washington State Institute for Public Policy noted that, at least as to
incarceration in that state, “Diminishing returns means that locking up
the fifth person per 1,000 did not, on average, reduce as many crimes as
did incarcerating the second, third, or fourth person per 1,000.” Steven
Aos, The Criminal Justice System in Washington State: Incarceration
Rates, Taxpayer Costs, Crime Rates and Prison Economics, http://
www.wsipp.wa.gov/rptfiles/SentReport2002.pdf (January 2003).
5. See, e.g., INVISIBLE PUNISHMENT: THE COLLATERAL
CONSEQUENCES OF MASS IMPRISONMENT (Marc Mauer &
Meda Chesney-Lind eds., 2002); Dina R. Rose, Todd Clear and Judith
A. Ryder, Drugs, Incarcerations and Neighborhood Life: The Impact of
Reintegrating Offenders in the Community (Washington, DC: National
Institute of Justice 2000); John Hagan & Ronit Dinovitzer, Collateral
Consequences of Imprisonment for Children, Communities, and Prisoners,
in PRISONS (Michael Tonry & Joan Petersilia eds., 1999).
6. Justice Kennedy Commission Report, supra note 4 at 22. This apparent change in attitude by policy-makers notwithstanding, the most
recent Justice Department data shows prison and jail populations continuing to increase, by 2.7% overall between December 2004 and December 2005. See Paige M. Harrison and Alan J. Beck, Bureau of Justice
Statistics, Prisoners in 2005 available at http://www.ojp.usdoj.gov/
bjs/pub/pdf/p05.pdf
During 2005, the number of inmates in State prisons increased
1.3%; in Federal prisons 5.1%; and in local jails, 4.7%. Overall, the
state incarceration rate rose about 14% between yearend 1995 and
yearend 2005, from 379 to 491 prisoners per 100,000 U.S. residents. At
the same time the federal incarceration rate rose 72%, from 32 to 55
prisoners per 100,000 U.S. residents. The rate of incarceration in prison
and jail in 2005 was 738 inmates per 100,000 U.S. residents, up from
725 the year before. At yearend 2005, one in every 136 U.S. residents
were in prison or jail. An estimated 12% of black males, 3.7% of Hispanic males, and 1.7% of white males in their late twenties were in
prison or jail. A total of seven million people in the Uniteed States –
one in every 32 adults — were currently serving time in prison or jail,
or on probation or parole. See Lauren E. Glaze and Thomas P. Bonczar,
16
19. March 31 Hearing Notes available at http://www.abanet.org/cecs.
20. Mentally Ill Offenders in the Criminal Justice System: An Analysis
and Prescription, The Sentencing Project (2002), http://www.sentencingproject.org/pdfs/9089.pdf.
21. See, e.g., the legislative findings of the Community Punishment
Act of 1993, Ark. Code Ann. §16-93-1201 et seq.: “The State of
Arkansas hereby finds that the cost of incarcerating the ever-increasing
numbers of offenders in traditional penitentiaries is skyrocketing, bringing added fiscal pressures on state government, and that some inmates
can be effectively punished, with little risk to the public, in a more affordable manner through the use of community correction programs
and nontraditional facilities.” Ark. Code Ann. §16-93-1201(a).
22. Ark. Code Ann. §16-93-1207(b)(1)(A)-(C). Under Ark. Code
Ann. §16-93-1202(j)(1)(A), “target group” means a group of offenders
and offenses determined to be, but not limited to, theft, theft by
receiving, hot checks, residential burglary, commercial burglary, failure
to appear, fraudulent use of credit cards, criminal mischief, breaking or
entering, drug paraphernalia, driving while intoxicated, fourth or
subsequent offense, all other Class C or Class D felonies which are not
either violent or sexual and which meet the eligibility criteria
determined by the General Assembly to have significant impact on the
use of correctional resources, Class A and Class B controlled substance
felonies, and all other unclassified felonies for which the prescribed
limitations on a sentence do not exceed the prescribed limitations for a
Class C felony and that are not either violent or sexual.
23. The residential programs are organized on a therapeutic model,
and offer structure, supervision, drug/alcohol treatment, educational
and vocational programs, employment counseling, socialization and life
skills programs, and other forms of treatment and programs. When an
offender is assigned to a community-based correctional center the treatment focus is a multi-level approach designed to re-socialize the pattern
of thinking and behavior, and the goal is for pro-social choice and actions to become automatic and reflexive for the offender. To achieve
the desired re-socialization, the residents are taught new concepts, new
values, and rules of expected conduct. The program also provides substance abuse treatment. Another key aspect of the program is peer
mentoring. Through peer mentoring, offenders are able to see another
person with similar circumstances living a new way of life.
24. Prior to DCC moving to the therapeutic community concept,
the DCC conducted a 3-year recidivism study of 322 residents released
from community corrections centers between March 1995 and March
1998. Results indicate a composite recidivism rate of 38% for the 3
year period. Another study was conducted of 900 randomly selected
male and female offenders released from the CCC which operated in
the therapeutic community environment prior to March 1, 2000 and
yield a 38% recidivism rate.
25. Arkansas Department of Community Corrections supervises 28
drug courts, which are usually post-adjudication courts that handle probation cases involving drug addicted offenders through intense supervision, monitoring, and treatment programs. Successful completion of
the drug court can result in the dismissal of charges, reduced or set aside
sentences, lesser penalties, or a combination of these. Generally, a
post-adjudication drug court program lasts for an average of twelve
months with a 2 year strictly supervised probation aftercare program.
26. See Ark. Code Ann. §§ 16-90-901 through 16-90-905. One reported shortcoming of the Arkansas diversion programs is that the state
police and other record-retention agencies are not properly updating
the records to reflect the dismissals and expungements, so that offenders are facing challenges in explaining arrest record to employers even if
33621(b)). The ABA has found “troubling” BOP’s efforts to impose regulatory limits on its own ability to designate sentenced offenders to community corrections centers, in light of contrary judicial holdings, and in
light of the government’s stated commitment to facilitate offender reentry. See Letter to the Bureau of Prisons Rules United, dated October 15,
2004, from James Felman and Todd A. Bussert, co-chairs of the ABA
Criminal Justice Section’s Corrections & Sentencing Committee.
15. Ann Jacobs, Director of the Women’s Prison Association, comments in her introduction to a new study of women in prison that “The
cycling of women through the criminal justice system has a destabilizing
effect not only on the women’s immediate families, but on the social
networks of their communities. They are, more often than not, primary
caretakers of young children and other family members.” Introduction to
Natasha Frost, Judith Greene and Kevin Pranis, The Punitiveness Report Hard Hit: The Growth in Imprisonment of Women, 1977-2004 (2006),
available at http://www.wpaonline.org/institute/
hardhit/foreword.htm. This recent study tracks changes in the incarceration rate of women between 1977 and 2004, a period in which the
number of women serving sentences of more than a year grew by 757%
— nearly twice the 388 percent increase in the male prison population.
Most of the increase can be accounted for by the drug war: the percentage of women serving time for drug offenses grew from 11% in 1979 to
32% in 2004. In most cases. Women arrested for involvement in the
drug trade tend to play peripheral or minimal roles, selling small
amounts to support a habit, or simply living with intimates who engage
in drug sales. Lenora Lapidus, Namita Luthra & Anjuli Verma, Deborah
Small, Patricia Allard & Kirsten Levingston. Caught in the Net: the Impact of Drug Policies on Women and Families. Available at http://www.fairlaws4families.org/ A second volume of the study will look more deeply
at factors that increased the risk of imprisonment for women arrested for
felony offenses and increased the amount of time spent behind bars.
16. Lisa Schreibersdorf, Executive Director of the Brooklyn Defenders Office, reminded the Commission that constitutional safeguards
must always be observed when an alternative therapeutic program is
being developed. Confidentiality must be protected in these programs
when clients are provided counseling and other services, and attorney
consent should be received before a client is interviewed. Also, the
constitutional right against cruel and unusual punishment must be
monitored by courts, because the practices of some programs could
amount to violation of defendants’ constitutional rights.
17. Some defenders are reluctant to counsel their clients to plead
guilty if there is a reasonable chance they can win an acquittal, even if
it is evident that the clients are in need of drug treatment or other intervention to help them from coming back into the justice system. A
program that offers the possibility of complete expungement at the end
may present to a conscientious defender an offer that tips the balance
in favor of treatment.
18. Judith Rossi, Connecticut Executive Assistant States Attorney,
highlighted in her testimony before the Commission the Memphis Police
Crisis Intervention Team (“CIT”) as an example of a law enforcement
agency that has specially trained officers to provide an immediate response to a crisis involving mentally ill people. The officers in this unit
are trained to interact with the mentally ill, defuse potentially volatile
situations, assess medical information, and evaluate the individual’s social
support system. The CIT program transformed the traditional enforcement-oriented police response to the mentally ill to one that is both
more effective and more humane. As a result, arrests and use of force in
dealing with mentally ill offenders has decreased dramatically. See
http://www.memphispolice.org/Crisis%20Intervention.htm.
17
program, and concluded that the average cost of placing a participant
in DTAP, including drug treatment, vocational training and support
services was $32,975 as compared to an average cost of $64,338 if the
participant had been placed in prison. See Crossing the Bridge: An
Evaluation of the Drug Treatment Alternative-to Prison (DTAP) Program (March 2003).
30. Misdemeanor diversionary programs include: TIP (2 day drug
awareness program); STOP LIFT (shoplifting awareness program);
TASC (inpatient/outpatient drug treatment); KCDA AA (10 week alcohol program); Driver Improvement (Driver Safety Course); Community Service (defendants sentenced to perform work in the
community); Mental Health Diversion (immediate treatment offered at
night arraignments to non-violent minor offenders with mental illness);
Project Respect (provides education for those arrested for patronizing
prostitutes); STARS/EPIC- Intensive multidiscipline treatment/assistance/counseling for prostitutes; YCP (Faith-based youth mentoring)
YCP and TASC are also available to felons. In addition, misdemeanor
drug court, domestic violence court and a community court also provide diversionary programs.
31. Or. Rev. Stat. § 137.225(1) through (12) authorizes sentencing
court to “set aside” misdemeanors and minor felonies (Class C, except
sex and traffic offenses, and some other minor crimes). Upon application, order must issue unless the court makes written findings by clear
and convincing evidence that granting the motion would not be in the
best interests of justice. § 137.225(11). A set-aside restores all rights
and relieves all disabilities – conviction deemed not to have occurred.
“Upon entry of such an order, such conviction, arrest or other proceeding shall be deemed not to have occurred, and the applicant may answer accordingly any questions relating to their occurrence.” Or. Rev.
Stat. § 137.225(4).
32. Md. Code Ann., Crim. Proc. §6-220(b)(1).
33. Md. Code Ann., §6-220(g).
34. Md. Code Ann., §§10-105(a)(c)(2)(ii). A PBJ record that has
been expunged may be opened only upon court order, with notice to
person concerned and a hearing, or upon ex parte application by the
states attorney and a showing of good cause. § 10-108(a) through (c).
PBJ conviction that has been expunged need not be reported, § 10-108,
and an expunged conviction may not be used to deny employment or
licensure. § 10-109. A PBJ sentence, if expunged, may not be used to
enhance subsequent sentence. See U.S. v. Bagheri, 999 F. 2d 80 (4th
Cir. 1993).
35. March 31 Hearing Notes, available at http://www.abanet.org/cecs.
36. http://www.co.multnomah.or.us/da/cc/faq.php#30
no conviction is listed in the system. Public Defender Commission Director Didi Sallings told the Commission that many offenders are in
need of legal assistance in expunging criminal records, and that the
state public defender commission is seeking additional resources to provide these services.
27. David Guntharpe testified that his legal staff had recently
discovered a little-known Arkansas statute that allows probationers
who have successfully completed all of the terms of their probation to
petition the court to dismiss the charges against them and expunge the
record. Under Ark. Code Ann. § 5-4-311(a) and (b), probationers for
whom a judgment of conviction was not entered, including those who
went to trial, are entitled to apply to the sentencing court upon completion of supervision for an order dismissing the charges, and “expunging” the record. Understanding that many of the people supervised by
his agency do not have the means to hire a lawyer and go to court, Mr.
Guntharpe directed his staff to prepare a model petition form to give to
each probationer as he or she “graduates,” so that they can easily file
the form with the court and obtain expungement. A person whose
record is expunged “shall have all privileges and rights restored, shall be
completely exonerated, and the record which has been expunged shall
not affect any of his civil rights or liberties, unless otherwise specifically
provided for by law.” § 16-90-902(a). Upon the entry of the order to
seal, the underlying conduct “shall be deemed as a matter of law never
to have occurred, and the individual may state that no such conduct
ever occurred and that no such records exist,” including in response to
questions. § 16-90-902(b).
28. A 1990 University of Connecticut study compared offenders
placed in alternative programs with a control group of incarcerated offenders, and concluded that offenders placed in alternatives had substantially lower rearrest rates; the best rates involved the youngest
offenders where the rate differentials were 3 to 1. An investigation by
the Connecticut General Assembly’s Legislative Program Review and
Investigations Committee found in 2005 that two-thirds of the offenders in the Alternative to Incarceration network had not recidivated at
the one-year follow-up point. Another study of Connecticut alternative programs, conducted by Justice System Assessment and Training
consulting firm from Boulder, Colorado, found that 72% of program
participants had not recidivated during the 14 month follow-up period. Domestic Violence (“DV”) offenders have even promising figures with 90% not being rearrested for a DV offense and 75% not
rearrested at all for any offense, according to a 2005 National Institute
of Justice funded study.
29. The National Center on Addiction and Substance Abuse at Columbia University (CASA) conducted an extensive study of the DTAP
18
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Report to the House of Delegates
on improvements in probation and
parole supervision
Midyear Meeting, 2007
Recommendation
Report
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop and
implement meaningful graduated sanctions for violations of
parole or probation as alternatives to incarceration. Incarceration may be appropriate when:
Parole and probation supervision is an important part of any
discussion of sentencing alternatives and recidivism. The
number of people returned to state prison for a parole violation
increased sevenfold between 1980 and 2000, from 27,000 to
203,000, and parole violators now account for more than one
third of all prison admissions.1 Almost half of all parolees return to prison or jail within 24 months of their release.2 As
prison populations grow and increasing numbers of offenders
are released on parole, it is not surprising to find some increase
in parole violations. But, the magnitude of the numbers involved suggests that substantial resources are being devoted to
identifying every violation of parole conditions and to making
revocation the preferred sanction for all violations. There is a
growing body of evidence suggesting that this practice results
in an expenditure of resources that does not improve public
safety. Indeed, a recent study by the Urban Institute calls into
question the extent to which parole and probation supervision,
as currently administered, is effective in reducing recidivism
rates or otherwise enhancing public safety. The study found
that offenders under supervision are re-arrested for new crimes
at about the same rate as offenders released unconditionally.3
In 2004, the Justice Kennedy Commission recognized the
enormity of the problem raised by the state of parole and probation supervision in this country. The revolving door in
which inmates were released to the community and returned
to prison for minor violations of their release conditions was
most evident in California, where the cost of incarcerating parole violators was estimated at $900 million. In the words of
California’s Little Hoover Commission, “California has created
a revolving door that does not adequately distinguish between
parolees who should be able to make it on the outside, and
those who should go back to prison for a longer period of
time.”4 But this problem is not unique to the state of California, and parolees and probationers account for a majority of
prison admissions in most states. Moreover, of the parole violators returned to prison, more than two-thirds were incarcerated for a violation of the conditions of their release, rather
than commission of some new criminal violation.5
It became abundantly clear to the Commission in the
course of our hearings that parole and probation supervision is
a critical part of the recidivism puzzle, for two reasons: first,
i) an offender commits a new crime or engages in
repeated violations;
ii) lesser sanctions, including appropriate treatment
options, have not been effective; or
iii) the offender poses a danger to the community.
In those cases where an individual is sent to jail or prison
as a sanction for a violation of probation or parole, the
period of incarceration should be that reasonably necessary
to modify the individual’s behavior and deter future
violations.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to distinguish between probation/parole violators who would benefit
from community supervision and those who would not, and to
deploy community supervision resources accordingly.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to provide adequate resources and funding to ensure that the quality
and intensity of supervision for offenders is significantly increased. Manageable case-loads for probation and parole officers ensure that sanctions imposed in lieu of incarceration are
meaningful; reduce the likelihood of recidivism; and increase
the chances for successful rehabilitation.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments, to create
standards for the performance of probation or parole officers
that will consider, in addition to other appropriate factors, the
number of individuals under an officer’s supervision who successfully complete supervision, as well as those whose probation or parole is appropriately revoked, taking into account the
nature of the officer’s caseload.
20
adjust, particularly where they have a substance abuse probprobation and parole agents exercise tremendous discretion
lem. It concluded therefore that a return to prison will be apthrough their revocation power in deciding whether an ofpropriate only where an individual engages in repeated
fender has violated conditions of supervision in the first place,
violations and lesser sanctions, including appropriate treatand whether an offender should be returned to prison. Secment
options, have not been effective. In cases where imprisond, probation and parole agents are in a position to play a key
onment
must be used as a sanction, the length of incarceration
role in assisting people returning home from prison to readjust
should
be
determined by what is reasonably necessary to modto the community and stay out of trouble. Many jurisdictions
ify
the
individual’s
behavior and deter future violations.8 If inare re-evaluating their approach to offender supervision and
carceration
is
deemed
appropriate at all, a short-term return to
realizing that the successful reintegration of the offender must
jail will often be more useful than a return to the penitentiary.
be a primary goal of community supervision. Offenders who
A second way that jurisdictions can improve their probasuccessfully rejoin the community are less likely to commit fution and parole systems is to distinguish
ture crimes than offenders who fail. The
between offenders who would benefit
bottom line is that reintegration of offrom community supervision and those
fenders promotes public safety and should
who would not, and to deploy community
therefore be the primary goal of any syssupervision
resources accordingly. The ultem of community supervision.
The number of people
timate goal of preventing re-offending,
The policy recommended by the Justice Kennedy Commission, subsequently
returned to state prison for breaking substance abuse habits, and, in
the end, changing parolees’ lives for the
adopted by the ABA House of Delegates,
better
is elusive for many parole and prowas that jurisdictions should develop
a parole violation
bation officers because of the everyday regraduated sanctions for probation and paalties of high caseloads and lack of
role violations, and reserve incarceration
increased sevenfold
resources. A study of reentry policies pubfor cases where “a probation or parole vilished by the Council of State Governolator has committed a new crime or
between 1980 and 2000,
ments reported that parole officers’
poses a danger to the community.” The
caseloads may average 70 parolees each,
Commission reaffirms this position, and
from 27,000 to 203,000,
translating to one or two 15-minute meetmakes several further recommendations
ings a month.9 Probation caseloads are
to make parole and probation systems
and parole violators now
more efficient and more likely to promote
even larger, averaging roughly 130 probapublic safety. First, jurisdictions should
tioners per officer. And, these numbers
account for more than
continue to develop meaningful graduare on the low-end for many jurisdictions.
ated sanctions for violations of parole or
While lower caseloads do not ensure sucone third of all prison
probation, as recommended by the Justice
cess, such high caseloads make it virtually
Kennedy Commission, as an alternative
impossible for the parole officer to address
admissions.
to incarceration. They should not return
the needs of the offender. It is not surprisan offender to prison for a violation of
ing, in the view of the poor preparation
the conditions of release, unless that inthat most prison inmates receive for their
dividual has committed a new crime, enrelease and the lack of support services
gaged in repeated violations, lesser measures have been
available to them in the community to assist with reentry, that
unsuccessful, or the offender poses a danger to the
many who are released on parole may find adjustment to freecommunity.6 A brief period of re-incarceration in a commudom difficult. And once they are faced with these challenges,
it is virtually impossible to receive the support needed during
nity custody facility may benefit a parolee who is having difficulty adjusting to freedom. But an automatic return to the
“15-minute visits” with their parole officers.
penitentiary for violations that do not amount to a crime,
Research has shown that the first weeks after an offender’s
without addressing the reasons for the non-compliance, is unreturn to the community are critical. It is this period in which
likely to be beneficial to the individual, is costly, and may acoffenders require additional support in order to ensure that
tually be harmful to the community in the long run. The
they do not slip back into old patterns of criminal behavior.10
Urban Institute study found that parolees returned to prison
The Commission recognizes that additional resources may not
for the remainder of their sentence for minor violations, and
be available to provide additional assistance during the early
finally released without supervision, were more likely to be reweeks of supervision. However, it is imperative that existing
arrested for a new crime than any other release group.7
resources be allocated so that offenders who need the most
help
get it. Research has shown that some offenders do not
Ordinarily, less serious violations of the terms of supervision
can be better addressed through community-based sanctions
need intensive supervision and may be better off without any
other than incarceration that focus on the reasons for nonat all.11 If resources were targeted to high-risk offenders who
compliance, because many violators suffer from treatable issues
evidently need assistance in adjusting to release, especially in
such as substance abuse, mental illnesses, or lack of life skills
the first weeks of supervision, overall caseloads could be rethat could be remedied through treatment services. The Comduced. Reduced caseloads may actually result in fewer violamission heard testimony from many witnesses that parolees
tions, since parole and probation officers will be focusing their
and probationers will often slip up several times before they
efforts on offenders who pose the greatest risk of returning to
21
his regular path in order to get assistance. After hearing this
story and considering other factors, such as the fact the young
man maintained full time employment and was the sole
provider for his family of three children, Montes refused to revoke his parole. However, Montes’ colleagues at the parole
board did not agree with his decision and voted to override his
decision. Fortunately, Montes was able to convince his colleagues to re-consider their vote. But for Montes the original
and the reversed decisions illustrated the difference between
the old and new approach to parole revocation in Illinois.
Mr. Montes testified that he has been committed to changing the culture at the Illinois Prisoner Review Board throughout his tenure as Chair of the Board. He pointed out that
when he first joined his board, none of its members had been
trained on issues related to offender reentry and alternatives
to incarceration. The members did not feel that the personal
issues facing offenders under their supervision were any of
their concern, and failed to appreciate that successful re-entry
of offenders was a critical link to sustaining public safety.
Montes testified that the culture of the Illinois Board began to
change in 2002, when board members were required to consider the impact of their decisions on the recidivism rate. The
Board realized that it was not a law enforcement agency and
should be addressing offender re-entry and recidivism. As in
many other jurisdictions, the traditional approach is changing
as parole agencies realize that they have a stake in successful
reentry, and work to help the parolee contribute positively to
their community.
The Illinois Prisoner Review Board is also instituting new
programs to handle parole revocation cases more efficiently, so
as to avoid unnecessary incarceration. Through this new program, parole revocation cases are reviewed during initial jail
intake to determine if there are alternative programs available
in the community as opposed to incarceration. If alternative
programs are available, then the detention hold is lifted and
the person is released under community supervision.
Some of the other states whose officials testified have also
begun taking a new approach to parole violators. The
Arkansas Department of Community Correction instituted a
formal Technical Violators (“TV”) Program two years ago,
which provides community based treatment services to parole
violators for a period of 30 to 90 days as a prison alternative
sanction.15 The TV Program is an intensive residential program followed by aftercare under community supervision. A
resident completes the following stages of the program:
criminal behavior. Success with these individuals holds out
the promise of reducing overall recidivism and promoting public safety.12 The goal is to significantly increase the quality
and intensity of supervision so that sanctions imposed in lieu
of incarceration are meaningful, thereby increasing the
chances for successful rehabilitation while reducing the likelihood of recidivism.
A third way jurisdictions can improve their parole and probation systems is to change the way probation and parole
agencies perceive their role in offender supervision and the
way in which probation and parole officers are themselves
evaluated. In recent years, some parole and probation officers
have come to view themselves as functioning in a law enforcement rather than social service capacity, and see themselves as
adversaries of rather than mentors to an offender. This perception produces a mode of performance that is more oriented toward surveillance than assistance. Officers work to catch an
offender in some act of disobedience and are unwilling to tolerate the predictable slips that accompany adjustment, particularly where substance abuse is involved. In too many
jurisdictions, probation and parole officers play the role of enforcer, identifying with the police more closely than with community institutions that might offer support to an individual
trying to stay out of trouble.13 This culture is reinforced when
job performance is measured by the number of parole and probation revocations issued and the number of people sent to or
returned to prison.
If parole and probation officers are empowered and encouraged to utilize sanctions other than outright revocation
when offenders violate the conditions of supervision, if they
are permitted to focus their energy on offenders who need the
most help, and if an important factor in assessing the performance of officers is their success in helping offenders reintegrate, there is a greater opportunity to enhance public
safety by enabling offenders to overcome addictions, find
housing, receive job training and placement assistance, and
other services. Public safety must remain the central responsibility of parole and probation agencies, but it is not enhanced by taking offenders whose behavior could be modified
and recycling them in and out of prison without providing
them the tools they need to change. When offenders successfully transform their lives, they are by definition no
longer a threat to the community.
The Commission heard testimony about encouraging
changes beginning in the culture of parole boards to meet the
new understanding of the ways in which successful reentry enhances community safety. Jorge Montes, Chair of the Illinois
Prisoner Review Board, testified at the Commission’s March
31 hearing that when he joined his Board in the 1990s, it
tended to view parole enforcement in black and white terms,
and to treat any violations with zero tolerance.14 He shared
the story of one young man who appeared before him at a parole revocation hearing. This parolee was required to stay
within a certain geographic area as a condition of his release,
which was monitored by an electronic device. His parole was
revoked because he strayed outside of the allowed area for a
period of thirty minutes. The young man explained to
Montes at his hearing that he had been driving home from
work and gotten a flat tire, and had been forced to detour from
• Intake: a three day processing period.
• Orientation: a five day period where resident receives
an overview of the purpose and structure, rights and
responsibilities, assessment of factors contributing to
violations, and strategy developments for compliance
through treatment. This phase includes a counselor
and may include a supervising parole/probation officer.
• Treatment: a four to five week period devoted to fulfilling the treatment plan requirements.
• Pre-Release: the last three weeks of confinement include activities and classes focusing on transition and
practical matters associated with relapse prevention
and increased parole/probation officer involvement.
22
Board’s Behavior Response and Adjustment Guide describes
Throughout the entire program, the parole/probation officer
different levels of suggested responses (“incentives”) for posimaintains contact with the offender at least once a day, either
tive accomplishments by parolees. Low-level incentives inthrough a personal visit or telephone call. This contact fosters
clude verbal recognition, a letter of recognition, a certificate of
a continuous relationship between the offender and the pacompletion,
or a 6-month compliance certificate. Mediumrole/probation officer, demonstrates the officer’s interest in the
level
incentives
include a one-year compliance certificate,
offender’s progress, and allows discussion of aspects of the paMr./Ms.
Clean
Award,
supervision level reduction, or reduced
role plan for release.
reporting
requirements.
The high-level incentives might inThe Arkansas Technical Violators program began two years
clude
a
commutation
recommendation,
cognitive skills graduaago with female offenders. To date, only 14% of the particition, lifestyle commitment award, or reduced reporting. 17 The
pants have committed new crimes and been sent back to
prison. In March 2005, a new 300-bed program for men was
State of Ohio created a similar program through the Supervistarted, and in its first year 1200 people have gone through cension Accountability Plan, which provides incentives to offendters with only 2% of the participants returning to prison. This
ers for compliance and successful reintegration.18 These
program serves as an inspiring example of how recidivism rates
programs aim to encourage parole compliance by re-enforcing
can be lowered by addressing the causes of
and rewarding the accomplishments of ofnon-compliance with the terms of supervifenders under their supervision, rather
sion through therapeutic methods.
than punishing their small and preConnecticut also has an Offender Redictable failures.
entry and Technical Violations Program
Each of these states has taken a differPublic safety must
to reduce parole and/or probation violaent approach to dealing with parole violations.16 Connecticut understood it had a
tions, but all recognize the need to
remain the central
provide additional support to some ofproblem when it was incarcerating over
fenders during the re-entry process. Both
2,000 people on non-criminal violations
responsibility of parole
the Arkansas and Connecticut programs
each year, and instituted reforms to preaddress the reasons for non-compliance
vent re-incarceration by intervening and
and probation agencies,
rather than incarcerating parolees without
assisting offenders who are violating their
any treatment. Connecticut’s reduction
terms of release and are on the brink of
but it is not enhanced by
of its parole and probation caseloads imreturning to prison. The offender is reproved the quality and intensity of superferred to a special probation unit, where
taking offenders whose
vision, and lessened the likelihood of
each officer has only 25 cases and is able
parole revocations. In most jurisdictions,
to devote additional time and resources in
behavior could be
high caseloads make it virtually impossiassisting the offender with the issues relatble for probation and parole officers to
ing to their non-compliance.
modified and recycling
provide offenders with the level of servIn addition, Connecticut began a Proices needed to both assist with reentry and
bation Transition Program in October
them in and out of prison
to ensure public safety. But states are
2004 to prepare offenders for community
coming to appreciate that incarceration is
supervision prior to release. The program
without providing them
the most costly form of punishment to
educates inmates on how to successfully
both society and the offender, and it
work with community supervision officers.
the tools they need to
should be used as a sanction only after all
Probation officers meet with clients 90
other remedies are exhausted or when the
days prior to their projected release date,
change.
offender poses a threat to the community.
to explain the terms and conditions of release and to develop a re-entry plan. The
Some of the success of these reforms
probation officers assigned to this program
may be facilitated by extrinsic consideraonly have 25 cases and are able to devote
tions peculiar to the states themselves.
more time to each client during the offender’s initial transiBoth Arkansas and Connecticut are relatively small states, and
tional phase from prison. Offenders remain in this program for
both administer their community corrections programs on a
a four month period after release, and then their cases are transcentralized basis. Both have had a good deal of success in conferred to a traditional probation officer who has a much heavier
vincing the state legislature that money is well spent on reencaseload. This program has proven successful; a study contry programs, both in short run prison savings, and in longer
ducted by Central Connecticut State University indicated a
range community stability as prisoners return and reestablish
nearly 40% reduction in non-criminal violations among particithemselves with their families. Both collaborate with a cenpants in the transition program as compared to a matched contralized public defender system and, in Connecticut, a centraltrol group. The key to this program’s success seems to be its
ized appointed prosecutor staff. In Arkansas, the Community
provisions of additional support for the critical months just
Corrections Department is independent of the prison system,
after release, when the danger of recidivism is greatest.
and has the ear of the governor. Both the Georgia and Ohio
Both Georgia and Ohio have taken a different approach, ofParole Boards have had strong and forward-looking leadership
fering “incentive” programs centered around rewards for good
in recent years. It is harder to imagine accomplishing these
behavior and program accomplishments. The Georgia Parole
kinds of reforms in states where community supervision is
23
handled at the county level, where the political establishment
still believes that locking people up is the way to make communities safer, and where funds are allocated accordingly.
Discussions with the National District Attorney’s Association led the Commission to emphasize that different jurisdictions will find different ways to improve the quality of
supervision and the performance of probation and parole officers. In each jurisdiction, it is important that standards be set
for probation and parole officers that recognize that they are responsible for protecting the community and for facilitating successful re-entry. It would be undesirable for a jurisdiction to
measure the performance of officers solely on the basis of the
number of individuals whose probation or parole was revoked,
or on the number of offenders who completed probation or parole without being revoked. There is nothing commendable
about a system that revokes individuals unnecessarily and imposes the costs of jail or prison on them and the community
while depriving them of the services and resources that might
enable them to successfully complete probation or parole. Similarly, there is nothing commendable about a system that encourages officers to let offenders remain in the community
when they pose a danger to public safety. Each jurisdiction
ought to encourage its officers to find the right balance and to
use meaningful graduated sanctions to encourage successful reentry while simultaneously protecting community safety. This
means that officers should be encouraged and trained how to
decide when to revoke the probation or parole and for how
long (i.e., for periods that are reasonably necessary to modify
the individual’s behavior and deter future violations), and when
to use graduated sanctions that permit an offender to remain
free from jail or prison and to learn from his/her mistakes. The
goal is to reward officers for making the best decisions from the
standpoint of the community and the offender.
Sound Parole Policies, Executive Summary, at i (November 2003). In her
recent study of the California correctional system, Joan Petersilia describes the parole system in California as a “nonstop game of catch-andrelease,” in which 66% of parolees were back behind bars within three
years, 27% for a new crime, and 39% for a “technical” parole violation.
Joan Petersilia, Understanding California Corrections at 71 (California
Policy Research Center, 2006), citing Ryan Fischer, Are California’s Recidivism Rates Really the Highest in the Nation? It Depends on What Measure of Recidivism You Use, UCI Center for Evidence-Based Corrections,
Irvine, California,Vol. 1, September 2005. Available at http://ucicorrections.seweb.uci.edu/. California’s abscond rate of 17% is the highest of
any state in the nation, and far above the national average of 7%. Professor Petersilia echoes the concerns of other criminal justice researchers that the misallocation of community supervision resources is
one cause of this problem: many high-risk offenders on parole receive
too little monitoring while many non-dangerous offenders stay on parole too long, so that sooner or later they will be caught up in some
trivial indiscretion and sent back to prison. Also, the lack of treatment
resources provided by community supervision agencies can result in
high re-incarceration rates. For example, California routinely orders
near-universal drug testing for all parolees, although two-thirds of them
have substance abuse histories and only 2.5% receive any professional
drug treatment while in prison, compared to a national average of 19%.
Id. at 41. See also Petersilia and Weisberg, Parole in California:
It’s a crime, Los Angeles Times, April 23, 2006, available at
http://www.latimes.com/news/opinion/commentary/la-oppetersilia23apr23,1,3727887.story. Thus, parolees invariably fail the
test which results in a violation and a return to prison. The state
should either provide more drug treatment in prison, or less testing in
the community, or at least a more flexible approach to test failures.
5. Travis, et al. supra note 1 at 22, citing U.S. Department of Justice,
Bureau of Justice Statistics, NCJ178234. Typical noncriminal violations of parole involve the obligation to report regularly to a parole officer, keep a curfew, stay within a particular geographic area, avoid the
use of drugs and the company of known felons, and participation in
treatment programs. A violation of any of these conditions can result
in revocation of parole or probation and incarceration. In some cases a
system may use the revocation violation process as a short-cut administrative route, including its lower standard of proof, to return people to
prison who are alleged to have committed serious new crimes. See,
e.g., Joan Petersilia,Understanding California Corrections, supra note 4 at
73 (“California uses technical violations to address a wide range of serious criminal behavior that other jurisdictions would handle through rearrest and prosecution.”).
6. The Commission is aware of the criticism leveled at the California
parole system, and does not endorse routine use of an administrative
recommitment process, with its less adversarial process, lower burden of
proof, and shorter periods of commitment, to address serious new crimes
committed by parolees. See Petersilia, supra note 4 at 73-75.
7. Solomon, supra note 3 at 33. A recent study released by The
Women’s Prison Association found that
Supervision conditions set by probation and parole authorities
can scuttle a woman’s best efforts to comply with an overload of
rigid rules and requirements. Policy changes designed to reduce
technical violation rates, such as the use of intermediate sanctions, should have favorable results for women, since many are
revoked to prison for violations of community supervision requirements related to substance abuse or conflicts between reporting requirements and family responsibilities.
Respectfully submitted,
Stephen A. Saltzburg, Co-Chair
James R. Thompson, Co-Chair
February 2007
Endnotes
1. Jeremy Travis & Sarah Lawrence, Beyond the Prison Gates: The
State of Parole in America at 21, The Urban Institute Justice Policy Center, November 2002, available at http://www.urban.org/UploadedPDF/
310583_Beyond_prison_gates.pdf.
2. Reentry Trends in the U.S.: Success rates for State parolees, Bureau of
Justice Statistics, available at http://www.ojp.usdoj.gov/bjs/reentry/
success.htm. See also Amy Solomon, Does Parole Supervision Work? at
27(Urban Institute 2005)(available at http://www.urban.org/UploadedPDF/1000908_parole_supervision.pdf) citing Glaze, L.E. and S. Palla ,
Probation and Parole in the United States, 2004., Bureau of Justice Statistics Bulletin 2005 (46% of parolees do not complete term successfully).
3. Amy Solomon found that mandatory parolees released conditionally were re-arrested at approximately the same rate as prisoners released
unconditionally, without supervision. Solomon, note 2 supra. Discretionary parolees released conditionally under supervision (who, unlike
mandatory parolees, have been the subject of a discretionary parole board
decision that they are ready to return to the community) were somewhat
less likely to be rearrested, but the difference is relatively small.
4. Little Hoover Commission, Back to the Community: Safe and
24
and provide a continuum of care when they reenter the community.
The Gateway program offers substance abuse programming, and the
Safer Foundation offers job training and placement. Re-arrest rates for
graduates of the Sheridan program in 2003 were 5%, as opposed to 51%
for the rest of the population under supervision.
13. The Commission was told that in Cook County, Illinois, parole
officers wear sidearms and ride in squad cars. We understand that this
is not unusual, and that in many jurisdictions parole officers have
come to look and act as if they are performing primarily a law enforcement function.
14. March 31 Hearing Notes, available at http://www.abanet.org/cecs.
15. Testimony of David Guntharpe, Director of the Arkansas Department of Community Corrections, ABA Commission on Effective
Criminal Sanctions Hearing, March 3, 2006, available at http://
www.abanet.org/cecs. In addition, information about the Arkansas program is also available on this website under Hearing Materials.
16. Testimony of William Carbone, Executive Director of Connecticut Court Support Services Division of the Judicial Branch, ABA Commission on Effective Criminal Sanctions Hearing, March 3, 2006,
available at http://www.abanet.org/cecs.
17. See Nancy Lavigne and Cynthia Mamalian, Prisoner Reentry in
Georgia, available at http://www.urban.org/UploadedPDF/411170_Prisoner_Reentry_GA.pdf. Low level incentives may be awarded if the offender is clean of drugs or steadily employed for 90 days, or if the
offender has six months of stable residence. Medium-level incentives
can come from 12 months stable employment/residence, few or no violations, six months clean from substance abuse, or outpatient program
completion. High-level incentives may be awarded for completion of
school/GED program, 12 months of a clean drug record, 24 months of
stable residence, or a record of pro-social activities.
18. In Ohio, incentives are given based on a parolee’s Supervision
Accountability Plan (SAP) as well as suggestions from the multi-disciplinary Community Reentry Management Teams that oversee the plan.
Their program is also structured based upon low-level, medium-level,
and high-level incentives, which are rated according to the completion
SAP related programs and activities.
Hard Hit: The Growth in Imprisonment of Women, 1977-2004 (2006)
8. The Commission considered and rejected a proposal to recommend that “offenders under community supervision should be sent or
returned to prison only as a last resort, and generally only upon commission of a new crime that would warrant incarceration if committed
by someone not subject to conditional release.”
9. Report of the Re-entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community (Council of State Governments) at 372, available at http://www.reentrypolicy.org/rp/AGP.Net/
Components/DocumentViewer/Download.aspxnz?DocumentID=1152.
10. Report of the Justice Kennedy Commission at 82. Available at
http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionRe
portsFinal.pdf
11. See Petersilia, supra note 4 at 70:
For some inmates, who are unlikely to reoffend and pose a low
safety risk to the community in any case, this type of arrangement [minimal supervision] may be just fine—except in that case
it is not clear why the State of California should bother keeping
them on parole. For other, more risky inmates, the abrupt reintegration into wholly unstructured life is likely to spell trouble. In
those cases, allocating resources for more intensive parole supervision could help prevent problems before they start.
Professor Petersilia reports that only one in five California parolees supported themselves through money earned from employment during
their first year after prison release:
Work that is available to parolees is often unskilled, with restricted opportunities to advance or to assume a supervisory
role, and it therefore often provides a minimum-wage salary that
supports a subsistence-level existence. . . . Unfortunately, the potential for material gain through criminal behavior looks more
realistic to some parolees than the prospect of escaping poverty
through legitimate employment.
12. Reduced parole caseloads are an important feature of the model
reentry programs offered by the Illinois Department of Corrections
through the Sheridan Correctional Center. The goal of the Sheridan
program is to prepare offenders for reentry while they are still in custody,
25
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Report to the House of Delegates
on employment and licensure of persons
with a criminal record
Midyear Meeting, 2007
Recommendation
restrictions or disqualifications that are either (i) not
substantially related to the particular employment or (ii)
not designed to protect the public safety;
3) Provide for a case-by-case exemption or waiver process to
give persons with a criminal record an opportunity to
make a showing of their fitness for the employment or license at issue, and provide a statement of reasons in writing if the opportunity is denied because of the
conviction; and
4) Provide for judicial or administrative review of a decision
to deny employment or licensure based upon a person’s
criminal record.
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop policy
on the employment of persons with a criminal record by government agencies, and the contractors and vendors who do
business with those agencies. Professional and occupational
licensing authorities should develop similar policy for the issuance of licenses. Except in cases where there is an absolute
statutory prohibition on employment or licensure of persons
because of a criminal conviction, as permitted by Standard 192.2 of the ABA Standards for Criminal Justice on Collateral
Sanctions and Discretionary Disqualification of Convicted
Persons, and that prohibition has not been waived or modified,
the conduct underlying the conviction should be considered
disqualifying only if it substantially relates to the particular
employment or license, or presents a present threat to public
safety, consistent with Criminal Justice Standard 19-3.1. Jurisdictions should develop criteria for determining when such a
substantial relationship exists.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to authorize a court or administrative agency to enter an order
waiving, modifying, or granting relief from a particular collateral sanction, in order to facilitate an offender’s reentry into
the community, in accordance with Standard 19-2.5(a). Such
an order should be available upon request at the time of sentencing or release from imprisonment, or at any time thereafter, upon a finding that such relief would be consistent with
the rehabilitation of the offender and the safety of the public,
and in the public interest. Where a sentence has not been
fully discharged, relief may be temporary or conditional, and it
may be enlarged or modified by the court or administrative
agency at any time upon a showing of good cause. Such an
order will not preclude employers or licensing boards from
considering the conduct underlying the conviction as a factor
in discretionary employment and licensing decisions, if that
conduct is substantially related to the particular employment
or license sought.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local legislatures to compile
an inventory of all collateral sanctions relating to employment
and licensure in the law codes for which they are responsible; where an absolute statutory disqualification cannot be justified, the legislature should either eliminate it, or modify it to
authorize the employer or licensing authority to waive the disqualification on a case-by-case basis. Jurisdictions should also
inventory all statutes and regulations specifically authorizing
consideration of conviction as a basis for discretionary disqualification from employment or licensure.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to require
that each government agency, and professional and occupational licensing authority, take the following steps:
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to establish a process whereby a convicted person may, upon completion of sentence or at some reasonable time thereafter, obtain
a judicial or administrative order relieving the person of all
collateral sanctions imposed by the law of that jurisdiction, as
provided by Standard 19-2.5(c). Such an order should be
predicated upon a finding that the person has conducted
1) Conduct an inventory of employment and licensing restrictions and disqualifications based upon a criminal
record for each occupation under the agency’s jurisdiction;
2) Eliminate or modify, to the extent authorized, any such
26
steady employment.2 Unfortunately, that same study showed
that 60 percent of former prisoners were still unemployed one
year after their release from prison.
Most people would agree that people who have committed
a crime should be entitled to a second chance after paying
their debt to society. Very few jurisdictions have figured out
how to accomplish this successfully, however. The statute
books in every state are filled with laws that disqualify people
from jobs and licenses based on a criminal record. Even where
it does not mandate exclusion, the law generally allows rejecFURTHER RESOLVED, That the American Bar Association
tion of applicants for employment (and termination of existing
urges federal, state, territorial and local governments to work
employees) based solely on the fact of a criminal record. Some
with private employer groups to develop job opportunities for
private employers have adopted sweeping policies against empeople with a criminal record, and incentives for private employing people with criminal records, including those who
ployers to hire people with criminal records.
were arrested and never convicted. The increased reliance
since 9/11 on criminal records checks as a
FURTHER RESOLVED, That the Amerscreening mechanism makes it much more
ican Bar Association urges federal, state,
difficult for the millions of Americans who
territorial and local governments to work
have a criminal record to find employwith employers and others who have a
ment and become productive citizens in
The ability to get and
legitimate need for access to criminal
our society.3
record information to permit its more efThe inability of persons with criminal
maintain employment has
ficient use, so as to encourage the emrecords to secure employment stems from
ployment of persons with criminal
a number of factors, including lack of
been identified as a
records where appropriate. In particular,
training and skills, and risk-averse attithey should:
tudes
of employers. Moreover, many of
reliable predictor of a
these offenders are returning to communi1) to the extent constitutionally perties that are already plagued with high uncriminal offender’s ability
missible, require all agencies and
employment rates, which puts them at an
employers seeking access to a pereven
greater disadvantage. But the legal
to successfully reenter
son’s criminal record to rely upon
system itself contributes heavily to the inan officially approved system of
ability of criminal offenders to get and
society after a term
records;
keep jobs, restricting employment and li2) except in cases where there is a
censure in numerous professions based
in prison, and remain
statutory requirement that an
solely on a criminal record. While some
agency or employer conduct a crimrestrictions are narrowly tailored to prolaw-abiding.
inal background check, require
tect against an identified public safety risk,
non-law enforcement agencies and
more often they are categorical and arbiemployers seeking access to an inditrary, bearing little or no apparent relavidual’s criminal record to demontionship to particular offense conduct, and
strate that the public interest in receiving such
without consideration of a particular individual’s post-convicinformation clearly outweighs the individual’s interest in
tion rehabilitation.
security and privacy.
Moreover, in most jurisdictions, there is no reliable and
generally accessible way of avoiding or waiving legal disqualifiFURTHER RESOLVED, That the American Bar Association
cations, or of reassuring an employer that an offender is rehaurges federal, state, territorial and local governments to make
bilitated and fit for the employment.4 And yet, a recent study
evidence of an individual’s conviction inadmissible in any achas shown that people with a criminal record that is more than
tion alleging an employer’s negligence or wrongful conduct
seven years old are no more likely to commit a new crime than
based on hiring as long as the employer relied on a judicial or
people who have no criminal record at all.5
administrative order granting relief from statutory or regulatory
The bottom line is that many people who are willing and
barriers to employment or licensure based upon conviction.
able to work, and who pose little or no risk to the community,
are being shut out of decent jobs because of their criminal
record.
This has obvious negative implications for the successReport
ful
functioning
of the criminal justice system, whose goal, after
The ability to get and maintain employment has been identified as a reliable predictor of a criminal offender’s ability to
all, is to reduce crime and make communities safer. Admitsuccessfully reenter society after a term in prison, and remain
tedly, this phenomenon is not new;6 what is new is the scale of
law-abiding.1 One recent study of reentry in a large metropolithe problem. To the extent it is a function of flaws in the legal
tan area showed that those who are unable to get a job are
system, the legal profession has a responsibility to address it.7
three times more likely to return to prison than those who find
Existing ABA Policy on Systemic Relief from Employment Barriers
himself in a law-abiding and productive manner since the conviction, and should create a “presumption of fitness” that
should be taken into account in all discretionary decisionmaking by public employers and licensing boards, even if the
conduct underlying the conviction is substantially related to
the particular employment or license sought. Such an order
may be conditional upon good conduct where an offender is
still under supervision, and may leave in place a specific collateral sanction if appropriate.
27
meeting in Chicago in March of 2006 with offenders working
The ABA has developed a body of policy relating to the emwith the Safer Foundation, members of the Commission heard
ployment of people with criminal convictions. In the Crimimoving testimony from people with marketable skills who had
nal Justice Standards on Collateral Sanctions and
served a term in prison and then struggled, upon their return
Discretionary Disqualification of Convicted Persons (3d ed.),
to their communities, to find work.9 Other witnesses spoke of
the ABA has urged the repeal of laws that automatically exthe
importance of making job placement a central part of a
clude people from particular jobs or licenses solely because of a
reentry
program. In October, the Commission held a full day’s
conviction. Standard 19-2.2 takes the position that such autohearing
in Brooklyn, and heard testimony suggesting that New
matic categorical disqualifications should be very narrowly
York’s
venerable
certificate program may not work as well as it
drawn: “The legislature should not impose a collateral sanction
might, largely because offenders are not made aware of it, eion a person convicted of an offense unless it determines that
ther by their defense counsel, by the courts, or by probation
the conduct constituting that particular offense provides so
and parole officers who supervise them in the community.
substantial a basis for imposing the sanction that the legislaThe New York program is also hampered by a certain degree of
ture cannot reasonably contemplate any circumstances in
confusion about the legal effect of certificates even among
which imposing the sanction would not be justified.”8
those officials responsible for administerThe Standards also address situations
ing the program. The Commission heard
in which a conviction is not automatically
testimony about similar relief programs in
disqualifying but rather is considered (or,
operation in Illinois, Connecticut, and
more properly, the conduct underlying the
Arizona. Many of the witnesses, particuconviction is considered) as a basis for dislarly
those from the advocacy community,
qualification. The Standards on CollatA recent study has
spoke of the substantial obstacles facing
eral Sanctions require that
people seeking employment after a stint
disqualification in such circumstances
shown that people with a
in prison, obstacles that may take the
should be permitted only if “engaging in
form
of legal barriers and prejudice
the conduct underlying the conviction
criminal record that is
against people with a criminal record, but
would provide a substantial basis for dismore frequently take the form of lack of
qualification even if the person had not
more than seven years
job skills and work experience on the part
been convicted.” Standard 19-3.1. The
of the offenders seeking employment.
Standards also provide for waiver, modifiold are no more likely to
Witnesses spoke of the importance of
cation or “timely and effective” relief from
having
some assistance in overcoming
particular collateral sanctions, by a court
commit a new crime than
these legal barriers as well as job training
or administrative agency, and for relief
programs as early as sentencing or release
from all collateral sanctions, in recognipeople who have no
from prison.
tion of an offender’s record of good conThe Commission came away from the
duct since conviction. Standard
criminal record at all.
October hearing convinced that govern19-2.5(a) and (c). Relief from particular
ment needs to make a concerted effort to
collateral sanctions might be to facilitate
address the problem of employment barrireentry, while the more comprehensive
ers, both legal and attitudinal, and that it
form of relief might recognize a sustained
needs to bring the private sector into the discussion. This efperiod of good conduct since conviction. Finally, the Stanfort must begin with the legislature, the statute books are filled
dards also call for a process by which an offender may obtain
with collateral sanctions that absolutely prohibit people with
review of, and relief from, discretionary disqualifications. Stancriminal convictions from being considered for certain jobs, no
dard 19-3.2.
Two years ago, the House adopted recommendations of the
matter how dated the offense and no matter now heroic their
Justice Kennedy Commission urging jurisdictions to provide
rehabilitation, and without regard to whether the offense conprisoners, from the beginning of their incarceration, with eduduct is related in any way to the job or license sought. Three
cational and job training opportunities, and give credit toward
years ago the ABA called upon legislatures to collect all collatsatisfaction of sentence for successful completion of such proeral sanctions in their statute books in a single chapter or secgrams. The Justice Kennedy Commission also recommended
tion of the jurisdiction’s criminal code, and to identify with
that jurisdictions provide prisoners returning to the commuparticularity the type, severity and duration of collateral sancnity with job placement assistance. Finally, it urged that juristions applicable to each offense. See Standard 19-2.1. We
dictions limit situations in which a convicted person may be
know of no legislature that has even begun work on this impordisqualified from otherwise available benefits and opportunitant task since the Standards were adopted by the House.10 .
ties, including employment, to the greatest extent consistent
with public safety.
Public Employment Policies Toward People
It is time to take the Collateral Sanctions Standards and
with Criminal Convictions
the Justice Kennedy Commission’s recommendations a further
The executive branches of two major urban centers and one
step, to address in operational fashion the systemic legal and
large state have in the past year announced sweeping changes
attitudinal barriers that keep qualified people from getting and
in public employment policies relating to people with criminal
keeping a job simply because of a conviction record. At a
convictions. These changes, described below, inspired the
28
facilities licensed, regulated, supervised or funded by the state,
employment pursuant to contracts with the state, and employment in which the state licenses or provides certifications to
practice. The order encourages other public entities and private
employers, “to the extent they are able, to take similar actions
to review their own employment policies and provide employment opportunities to individuals with criminal records.”
Before leaving the area of systemic approaches to the employment of people with convictions, it is worth describing the
promising scheme developed by the federal government for
employment in the transportation industries. A series of laws
and policies developed after 9/11 to screen workers in the air,
sea and ground transportation industries have produced a generally flexible regulatory scheme that balances government security interests on the one hand, with employee rights and
reentry considerations on the other. The central features of
this scheme are mandatory (or presumptive) disqualification is
applicable only to specified serious felonies; most mandatory
disqualifications lapse after a certain period of time, generally
seven to ten years; within the mandatory disqualification period, state pardons and expungements are given effect; and
waivers may be granted by the employing agency within the
period of mandatory disqualification if no other exception applies. Though serious crimes may still be the basis of exclusion
or termination, the requirements applicable in each of the
three industries recognize the importance of a case-by-case approach to consideration of conviction in employment.14
The Commission commends these pioneering efforts. It
recommends that other municipal jurisdictions take steps to
emulate Chicago and Boston, and that other state governors
consider following the example of Governor Bush. Specifically, the Commission recommends that jurisdictions develop
policy on the employment of persons with a criminal record by
government agencies, and the contractors and vendors who do
business with those agencies. Professional and occupational
licensing authorities should develop similar policy for the issuance of licenses.
The Commission urges federal, state and local governments
to set an example by amending their hiring policies to require
that a conviction should be considered disqualifying only if the
conduct underlying it “substantially relates” to the particular
employment or licensure, or presents a present threat to public
safety, consistent with Criminal Justice Standard 19-3.1. The
only exception is for the small category of cases where an absolute statutory prohibition on employment or licensure of persons with a conviction can be justified under Standard 19-2.2
(see discussion above), and that prohibition has not been
waived or modified, In extending the requirements of Standard
19-3.1 to private contractors and vendors, this recommendation
would expand existing ABA policy. Jurisdictions should develop criteria for determining when particular offense conduct
“substantially relates” to the employment or license sought.15
The Commission also urges that state legislatures examine
each absolute statutory disqualification in state law and regulation, to determine whether it can be justified under Standard 192.2 (“the conduct constituting that particular offense provides so
substantial a basis for imposing the sanction that the legislature
cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified”).16 The commentary
Commission’s own more general recommendations. We do
not hesitate to admit that we borrowed heavily from these
commendable efforts, particularly the extraordinary Executive
Order issued by Florida’s Governor Jeb Bush in April of 2006,
directing all state agencies and licensing boards to review and
revise their policies relating to the employment and licensure
of people with criminal convictions, imposed similar obligations on any employers subject to state regulation (including
contractors, vendors and regulated entities) and encouraged
private employers to do likewise. Also in 2006, Boston and
Chicago adopted sweeping new hiring policies applicable to all
municipal agencies in an effort to encourage employment of
people with conviction records.
The Chicago order came in response to recommendations
of the Mayoral Policy Caucus on Prisoner Reentry. Chicago
Mayor Richard Daley announced that the City would begin to
“balance the nature and severity of the crime with other factors, such as the passage of time and evidence of rehabilitation” in their hiring decisions. The City Department of
Human Resources issued guidelines imposing standards on all
city agencies regulating hiring decisions related to people with
criminal records, requiring that agencies consider the age of an
individual’s criminal record, the seriousness of the offense, evidence of rehabilitation, and other mitigating factors before
making their hiring decisions. Mayor Daley observed wisely
that “we cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.”
In Boston, the City Council passed an ordinance, which
was effective July 1, 2006, prohibiting municipal agencies and
their vendors and contractors from conducting a criminal
background check as part of their hiring process until the job
applicant is found to be “otherwise qualified” for the position.11
The ordinance also requires that the final employment decision considers the age and seriousness of the crime and the
“occurrences in the life of the applicant since the crime(s).”
Finally, the ordinance creates appeal rights for those denied
employment based on a criminal record and the right to present information related to “accuracy and relevancy” of the
criminal record. This measure ensures that everyone is given
an opportunity to be considered in the early stages of the employment process without regard to their criminal record, and
encourages employers to consider rehabilitation and other factors that may neutralize or overcome the negative effect of the
criminal record.12
In Florida, responding to the findings and recommendations
of his Ex-Offender Task Force, Governor Jeb Bush put in place
a system of state employment practices “to facilitate the reentry of ex-offenders into our communities and reduce the incidence of recidivism.”13 Executive Order 06-89, issued on
April 26, 2006, requires each state agency to 1) conduct an inventory of employment and licensing restrictions and disqualifications based upon a criminal record for each occupation
under the agency’s jurisdiction; 2) determine the impact of
such restrictions and disqualifications and eliminate or modify
any such restrictions or disqualifications that are not tailored
to protect the public safety; and 3) describe the exemption,
waiver or review mechanisms available to seek relief from the
disqualification or restriction. The order extends not simply to
employment within the agencies, but also to employment in
29
to Standard 19-2.2 provides that “absolute barriers to employment
or licensure are problematic, particularly where no time limitation
is specified and no waiver or relief mechanism is provided.” If an
absolute disqualification cannot be justified, the legislature should
either eliminate it, or modify it to authorize the agency to waive
the disqualification on a case-by-case basis. Even where the legislature can identify a “close connection between the offense and
the collateral sanction,” relief from the sanction should still be
available, if warranted. See Standard 19-2.5.17
In addition to a legislative review of absolute statutory barriers that are not waivable at the administrative level, the
Commission also recommends that each government agency,
and each professional and occupational licensing authority,
undertake the sort of systemic review of discretionary employment barriers contemplated in Governor Bush’s executive
order. Specifically, state agencies should 1) conduct an inventory of employment and licensing restrictions and disqualifications based upon a criminal record for each occupation under
the agency’s jurisdiction; 2) eliminate or modify, to the extent
authorized, any such restrictions or disqualifications that are
either (i) not substantially related to the particular employment or (ii) not designed to protect the public safety; 3) provide for a case-by-case exemption or waiver process to give
persons with a criminal record an opportunity to make a showing of their fitness for the employment or license at issue, and
provide a statement of reasons in writing if the opportunity is
denied because of the conviction; and 4) provide for judicial or
administrative review of a discretionary decision to deny employment or licensure based upon a person’s criminal record.18
These recommendations amplify the requirements of the Collateral Sanctions Standards relating to discretionary disqualification.19 Indeed, the commentary to Standard 3.3 foreshadows
many of the Commission’s recommendations directed to state officials.20 Unless there is an absolute statutory disqualification
from employment that satisfies the strict standard of Standard
19-2.2 (“the conduct constituting that particular offense provides
so substantial a basis for imposing the sanction that the legislature cannot reasonably contemplate any circumstances in which
imposing the sanction would not be justified”), agencies must
eliminate or modify any restrictions and disqualifications based
solely upon conviction. If the restrictions or disqualifications are
not eliminated, agencies must provide for a case-by-case exemption or waiver process, if authorized to do so.21
The Commission stopped short of extending these affirmative obligations to government contractors, vendors, and private employers that are regulated by the state, as provide in
Governor Bush’s Executive Order. While the Commission
does not discourage such extended efforts by states to regulate
private employment, it seems an ambitious beginning just for
state agencies to impose the new requirement on “occupations
under their jurisdiction.”22
The Commission heard testimony from state officials in over a
dozen states about the legal mechanisms they have in place to
help people overcome the legal barriers to reentry and reintegration. Some of these states have anti-discrimination laws
that prohibit denial of employment and/or licensing opportunities solely because of a criminal record.24 For example, New
York’s fair employment practices law extends its protections to
people with a criminal record, and prohibits public and private
employers and occupational licensing agencies from discriminating against employees based upon convictions and arrests
that did not result in a conviction, unless disqualification is
mandated by law.25 While many other states have some form
of nondiscrimination law, they are generally more limited that
New York’s. Many apply only to professional licensing decisions, and few have any provision for enforcement, a regrettable omission in the Commission’s view.
In addition to non-discrimination laws, states have developed a variety of other mechanisms to “neutralize” the effect of
a criminal record for employment purposes after the prison
portion of the sentence has been served, including executive
pardon, judicial sealing and expungement. The Commission
heard testimony about each one of these restoration mechanisms operating in different setting: executive pardon in
Arkansas, Connecticut and Maryland; expungement and sealing laws in Kansas and Oregon; and certificates of relief from
disabilities in New York and Illinois. In most jurisdictions,
there seems to be considerable resistance to the idea of judicial
expungement for any but minor offenses, and some general unease about the idea of relief built upon a fiction that the conviction did not take place, particularly in light of the ubiquity
of information in the internet age.
Pardon also seems unsuitable as a general relief mechanism,
at least in states where the power is exercised by the governor.
Pardon in Maryland and Arkansas is a considerably more vital
relief mechanism than it is in most states, but this is only because of the personal commitment of the governors who were
in office at the time of the Commission’s hearings, Robert
Ehrlich of Maryland and Mike Huckabee of Arkansas. And
despite this commitment, the pardon program in both states
operates on a comparatively small scale, constrained by political considerations to distribute relief on what appears to be almost a symbolic basis. It appears that only where the pardon
power is administered by an appointed board, as it is in Connecticut, is it capable of functioning in a more regular and
useful fashion.
At its hearing in Brooklyn in October 2006, the Commission heard additional testimony about the administrative and
judicial relief schemes implemented by New York, Illinois, Arizona, and Connecticut. All four of these states recognize the
need to give criminal offenders a way to avoid specific legal
disabilities as early as sentencing, and at some later point to
show that they have paid the full price for their crime and
earned the right to return to responsible membership in society. And all four seek to accomplish an offender’s reintegration into society not by trying to conceal the fact of
conviction, but by advertising evidence of rehabilitation. The
Commission was most impressed by Connecticut’s recently enacted “provisional pardon,” by which relief from specific “barriers or forfeitures” maybe obtained from the Pardon and Parole
Relief from Collateral Sanctions and Disqualification
from Employment Opportunities
One of the glaring flaws in the legal system of most states is
the absence of an effective mechanism whereby people who
have committed a crime may avoid or mitigate statutory disqualifications based on conviction, and demonstrate their
record of fitness for purposes of employment and licensing.23
30
administrative pardon, in accordance with Collateral SancBoard as early as sentencing. A person who has been awarded
tion Standard 19-2.5(c). This order would be predicated
a provisional pardon may later seek a full pardon, which eviupon a finding that “the person has conducted himself in a
dences rehabilitation and “erases” the conviction record.
law-abiding
and productive manner since the conviction,”
The Commission was persuaded by testimony at its three
and
it
would
create a “presumption of fitness” that would
hearings, and particularly by the witnesses at its Brooklyn
apply
even
where
there is a substantial relationship between
hearing, that offenders need to have access to timely and effecthe
conduct
and
the
employment. The “presumption of fittive relief from the collateral consequences of conviction,
ness”
would
apply
to
all discretionary decision-making by pubwhether those consequences are automatic and statutory, or
lic
employers
and
licensing
boards, and be given teeth
discretionary and attitudinal. There is also a clear need to
through the enforcement provision of the fourth clause of the
make available immediate targeted relief in appropriate cases
third Resolved clause. While it would not apply to private
from specific disabilities as early as sentencing (e.g., to permit
employment, such an order would be reassuring to private eman offender placed on probation to keep a job). A full certifiployers as a sign of “official forgiveness.”28
cation of “rehabilitation,” however denominated, logically
could be granted only after a waiting period following sentencOne obstacle to employment for convicted persons is an
ing, when an offender has demonstrated a sustained record of
employer’s concern about exposure to charges of negligent hirgood conduct
ing. There is a need for employers to feel comfortable hiring
The Commission therefore determined
people with convictions, without having
that it should propose a more nuanced
to worry constantly that they will be sued
two-tiered process, as contemplated by the
in the event something goes wrong. JudiABA Standards on Collateral Sanctions
cial or administrative relief orders may
and the Model Penal Code. 26 First-tier
serve a useful function in limiting an ema conviction should be
ployer’s exposure to negligent hiring suits
relief from a particular collateral sanction
based upon an employee’s conviction
should be available at an early point
considered disqualifying
record. Therefore, the Commission rec(even as early as sentencing for those senommends that jurisdictions make evitenced to probation, or release from imonly if the conduct
dence of an individual’s conviction
prisonment) by order of the sentencing
inadmissible
in any action alleging an emcourt or an administrative agency such as
underlying it
ployer’s negligence or wrongful conduct
the paroling authority, as called for by
based on hiring, as long as the employer
Collateral Sanctions Standard 19-2.5(a).
“substantially relates”
relied on a judicial or administrative order
The relief would be “to facilitate reentry,”
granting
relief from statutory or regulatory
and call for a finding that “such relief
to the particular
barriers to employment or licensure based
would be consistent with the rehabilitaupon conviction when hiring.29 In order
tion of the offender and in the public inemployment or licensure,
terest.” This finding would be something
for such orders to be truly effective in enshort of a full certification of “rehabilitacouraging
employment of convicted peror presents a present
tion” or “good conduct”, and its purpose
sons, the private sector must be educated
would be to serve as some reassurance to a
about them and view them as a reliable
threat to public safety
prospective employer, public or private.
tool for measuring a prospective emOnce the absolute bar had been removed,
ployee’s likely success on the job.
the person could be considered for the
Jurisdictions should also work with emjob, and disqualified only if the conduct
ployers and others who have a legitimate
underlying the conviction was “substantially related” to the
need for access to criminal record information to encourage its
job or license. The purpose of this targeted relief would be to
more efficient use, and thus to encourage employment of pergive people something to ward off automatic rejection even
sons with criminal records where appropriate. We believe that
before they have completed their sentences and established a
jurisdictions should require (to the extent the law permits) all
track record of law-abiding conduct.27
individuals and agencies seeking access to an individual’s criminal
record to rely upon an officially approved system of
It is important to note that the power to grant relief from a
particular collateral sanctions under this provision (as under
records. Private individuals seeking access to an individual’s
Standard 19-2.5(a)), would not be limited to employment and
criminal record from such a records system should be required
licensing. The Commission believes it is important for a court
to demonstrate that the public interest in disseminating such
or administrative agency to be able to grant relief from disqualinformation clearly outweighs the individual’s interest in
ifications affecting housing or welfare benefits or drivers lisecurity and privacy. Certain individuals and entities, such as
censes as well as from employment. In addition, relief from
employers or agencies that have a statutory obligation to concollateral penalties imposed by state law should be available to
duct background checks on applicants for employment or lifederal offenders, as well as people with out of state conviccenses, would be excepted from this obligation. This is the
tions. See Standard 19-2.5(b).
system employed in Massachusetts for thirty years, and at least
More complete relief from all collateral sanctions would be
in concept it appears to have worked well there.30
accomplished at a later time, after a period of law-abiding
As important as it is to remove legal barriers to employment
conduct, and would in effect operate as a sort of judicial or
and discourage discrimination, it is even more important to
31
encourage the private sector to employ persons with criminal
records.31 Joan Petersilia reports that “employers are more receptive to the idea of hiring an ex-felon if a third party intermediary – a counseling program or other service provider in
their community – is available to mentor and to help avert any
problems.”32 This approach has been pioneered by Chicago’s
Safer Foundation, which has been working for over thirty-five
years to assist people with criminal records find employment in
the private sector.33 Safer recruits and recommends candidates for particular jobs, and it takes the further step of continuing to sponsor and mentor the people it places with private
employers, essentially acting as a subcontractor. While Safer
has been successful in persuading small to medium companies
to participate in their programs because these companies lack
the resources to hire employment agencies to provide the mentoring and the training services that Safer provides, larger corporations have been harder to convince. There is a need for
colleague-to-colleague dialogue to encourage larger corporate
employers to employ offenders.34 Certificates of relief from disabilities may be helpful in overcoming employer reluctance to
hire people with convictions.
The Commission urges jurisdictions to work with private
employer groups to create decent job opportunities for people
with criminal records, and to develop incentives for private
employers to hire people with criminal records. The structure
and function of the Safer Foundation’s program could be emulated in other jurisdictions, and will be all the more necessary
as governments begin to dismantle the structure of exclusion
and discrimination as the Commission recommends.
of a Criminal Conviction: A State by State Resource Guide,(W.S. Hein,
2006), condensed at http://www.sentencingproject.org/rights-restoration.cfm. It bears emphasis that it is very much in the government’s interest to help people lead law-abiding and productive lives after they
have served their court-imposed sentences. Unfortunately, this does
not seem to have occurred to the legislators and administrators who
continue to make and enforce blanket policies of exclusion that provide for no exceptions.
5. Kurlychek, Brame, Bushway, ”Scarlet Letters and Recidivism: Does
An Old Criminal Record Predict Future Offending?,” 5 Criminology
and Public Policy 1101, 1117 (2006)(after five to seven years of lawabiding conduct “the risk of a new criminal event among a population of
nonoffenders and a population of prior offenders becomes similar”).
6. See, e.g., Final Report of the ABA Commission on Correctional
Facilities and Services, When Society Pronounces Judgment – The Work of
the Commission on Correctional Facilities and Services. Five Year Report,
1970-1975, available from the ABA Criminal Justice Section offices.
7. The Justice Kennedy Commission framed the issue eloquently:
Although it came as no surprise to us that most people have a
generally unsympathetic response to convicted felons, the Commission became acutely aware of an irony that is readily apparent
in our treatment of men and women sentenced to prison: i.e.,
the public expects convicted felons to learn their lesson and become law-abiding citizens, while the legal system burdens them
with continuing collateral disabilities that make it very difficult,
if not practically impossible, for them to successfully reintegrate
into the free community. To the extent that the legal system has
itself been complicit in creating this class of ‘internal exiles,’ it is
incumbent on the legal profession to try to remedy it.
Report of the Justice Kennedy Commission at 80 (2004), available at
http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommission
ReportsFinal.pdf
8. The courts have frequently invalidated laws that categorically exclude people with a criminal record based on a rational basis analysis.
See Miriam Aukerman, The Somewhat Suspect Class: Toward a Constitutional Framework for Evaluatinf Occupational Restrictions Affecting People
with Criminal Records, 7 Wayne St. J. Law & Soc. 1 (2006) for an extensive analysis of the legal protections available to people rejected for employment based on their criminal record. Aukerman finds that “in a
surprising number of cases related to occupational restrictions, the
courts have used rational basis review to invalidate laws that limit the
employment opportunities of people with criminal records. The pattern
that emerges from the cases is that courts are willing to strike down
laws which categorically bar large groups of former offenders from particular occupations, but will generally uphold laws where the relationship between the offense and the restricted occupation is more carefully
tailored.” Id. at 3.
9. Joe Cassily, the elected prosecutor from Harford County, Maryland, who testified at our Washington, D.C. hearing, told of a young
man whose dated and minor drug conviction from another jurisdiction
was proving an insuperable obstacle to getting a decent job, and proposed a number of reforms in the legal system to address the need to
see that offenders have a decent chance to prove themselves in the
workplace.
10. Law students in Maryland and Ohio have compiled partial inventories of the collateral consequences applicable in those states.
See Kimberly R. Mossoney and Cara A. Roecker, Ohio Collateral Sanctions Project, 36_U. Toledo L. Rev. 611 (2005); see also University of
Maryland School of Law Reentry of Ex-Offenders Clinic, A Report
Respectfully submitted,
Stephen A. Saltzburg, Co-Chair
James R. Thompson, Co-Chair
February 2007
Endnotes
1. See, e.g., Joan Petersilia,, When Prisoners Come Home: Parole and
Prisoner Reentry at 196 (Oxford Univ. Press 2003)(“Research has also
consistently shown that if parolees can find decent jobs as soon as possible after release, they are less likely to return to crime and to
prison.”). Programs devoted to finding work for parolees like the Texas
RIO (Re-integration of Offenders) Project, the New York City Center
for Employment Opportunities, and the Safer Foundation in Chicago,
have been found to produce greatly reduced recidivism rates. Id at 197.
2. Rebuilding Lives. Restoring Hope. Strengthening Communities:
Breaking the Cycle of Incarceration and Building Brighter Futures in
Chicago, final Report of the Mayoral Policy Caucus on Prisoner Reentry at 15 (2006).
3. The Bureau of Justice Statistics reports that as of December 31,
2003, over 71 million criminal history records were in the criminal history files of the State criminal history repositories. Some individuals
had a record in more than one state. Survey of State Criminal History Information Systems, 2003 at 2, Bureau of Justice Statistics, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/sschis03.pdf. A decade earlier,
over six million arrest records were reported to state criminal history
repositories. Use and Management of Criminal History Record Information: A Comprehensive Report, 2001 Update, Bureau of Justice Statistics,
Table 6, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/umchri01.pdf
4. See Margaret Colgate Love, Relief from the Collateral Consequences
32
question about the individual’s fitness for employment in the particular
job, and less serious offenses that should not result in automatic or presumptive disqualification, but can be considered as part of a general inquiry into an applicant’s character and fitness. It imposes a temporal
limit on the presumptive disqualification, and adds a presumption of rehabilitation after a certain period of law-abiding behavior, similar to
the English Rehabilitation of Offenders Act, under which a conviction
is “spent” after a certain period of time, and may no longer be considered as grounds for disqualification. It gives effect, within the period of
presumptive disqualification, to a state’s determination in a particular
case that a conviction record should not be a black mark on an individual’s record, whether because the charges were dismissed or set aside at
the front end, as a result of deferred adjudication or other diversion program, or the conviction pardoned or expunged at the back end. Finally,
it allows the employing authority to consider exceptional circumstances
even where there has not been a pardon or other external certification
of an offender’s rehabilitation, and to take a chance on an individual
where the facts seem to justify.
15. New York is one of the few states that has enacted a statutory
definition of the “direct” or “substantial” relationship test. See N.Y.
Correct. Law § 752 (“the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to
the license or employment sought.”) A number of other states have
codified multi-factor tests for determining when there is a “substantial”
or “direct” relationship” between a conviction and a job or license
offer). See, e.g., Conn. Gen. Stat. 46a-80; KY. Rev. Stat. Ann. §
335B.020(2); Minn. Stat. § 364.01; N.D. Cen. Code § 12.1-33-02.1;
N.J. Stat. Ann. § 2A:168A-2; N.Y. Correct. Law § 753; Va. Stat. Ann.
§ 54.1-10H(B)
16. The commentary to Standard 19-2.2 provides that there is a
“heavy burden of justification” on the legislature where absolute collateral penalties are concerned:
“There are certain situations in which a collateral sanction will
be so clearly appropriate given the nature of the offense that
case-by-case evaluation at the time of sentencing would be
pointless and inefficient. . . . It might well be appropriate to provide for automatic suspension of a driver’s license where the offense conduct is related to driving or motor vehicles, or to
exclude from educational institutions those who sell drugs there.
And, it may be appropriate to revoke a driver’s license or exclude
from aid on a case-by-case basis, subject to Standard 19-3.1. But
it is unreasonable and counterproductive to deny all drug offenders access to the means of rehabilitating themselves and supporting their families, thereby imposing a cost upon the community
with no evident corresponding benefit.
Collateral Sanctions Standard 19-2.2, commentary at 24-25 (footnotes
omitted).
17. Standard 19-2.5(a) provides that “The legislature should provide
a should authorize a court, a specified administrative body, or both, to
enter an order waiving, modifying, or granting timely and effective relief from any collateral sanction imposed by the law of that jurisdiction.” Standard 19-2.5(c) provides that “The legislature should
establish a process by which a convicted person may obtain an order relieving the person of all collateral sanctions imposed by the law of that
jurisdiction.”
18. Standard 19-3.2 provides that “The legislature should establish a
process for obtaining review of, and relief from, any discretionary disqualification.” The commentary states that
on Collateral Consequences of Criminal Convictions in Maryland
(October, 2004). At the time of this writing, a report from the University of Arizona’s James E. Rogers College of Law was in draft form (Collateral Consequences: A Comprehensive Study of the Ongoing Effects
of Criminal Convictions in Arizona, Preliminary Draft by the Law,
Criminal Justice and Security Program, November 2005). In addition,
since adoption of the Collateral Sanctions Standards in 2003, the National Conference of Commissioners on Uniform State Laws has begun
a uniform law drafting project on collateral Sanctions and disqualification of people with convictions that covers much of the same area as
the ABA Standards. (Indeed, the NCCUSL project was avowedly inspired by the ABA Standards.) In particular, the current draft contains
a provision limiting consideration of conviction in employment, licensing, housing and education, and allowing disqualification only if the
person is judged “unfit.” See § 6 of draft dated November 27, 2006, discussed at note 28, infra.
11. A copy of the Boston Ordinance is available at http://www.
nelp.org/docUploads/BostonCORIOrdinance%2Epdf. The press release
announcing the Chicago Mayor’s policy is at http://www.chicago
metropolis2020.org/documents/prisonerreentrypressrelease.pdf. See also
National Employment Law Project summary of the two ordinances, as
well as San Francisco’s “Ban the Box” initiative, available at
http://www.nelp.org/nwp/second_chance_labor_project/citypolicies.cfm?
bSuppressLayout=1&printpage=1. Under Massachusetts law, both public and private employers are limited in what they may ask of job applicants: Massachusetts’ general fair employment practices law makes it
unlawful for any covered employer to request any information from an
employee or applicant for employment about: (1) an arrest without conviction; (2) a first conviction for misdemeanors such as simple assault or
minor traffic violations; and (3) any conviction of a misdemeanor that
occurred five or more years before the application date. Mass. Gen.
Laws ch. 151B, § 4(9) (“any conviction of a misdemeanor where the
date of such conviction or the completion of any period of incarceration
resulting therefrom, whichever date is later, occurred five or more years
prior to the date of such application for employment or such request for
information, unless such person has been convicted of any offense
within five years immediately preceding the date of such application for
employment or such request for information”).
12. Just prior to publication of this report, in December 2006, the
Mayor of St. Paul, Minnesota, signed an Executive Order removing the
standard question regarding a criminal background from the City’s job
application form. Background checks will still be conducted for many
jobs but only after the applicant has been determined to be “otherwise
qualified”. Job applicants with a criminal record will then be given an
opportunity to explain what they have done to deserve a second chance
before the City makes a final decision. See http://www.twincities.com/
mld/pioneerpress/16181165.htm. Similar reform efforts are under way
in Minneapolis, and nearby Ramsey and Hennepin Counties.
13. See Exec. Order No. 06-89, April 25, 2006, available at http://
sun6.dms.state.fl.us/eog_new/eog/orders/2006/April/06-89-exoftf.pdf
14. The TSA scheme is described in greater detail in National Employment Law Project, A Summary of the New Federal Security Standards
Regulating Transportation Workers, March 8, 2005, http://www.nelp.
org/docUploads/TransportationLaws%2Epdf; See also Margaret Colgate
Love, Relief from the Collateral Consequences of Conviction: Notes
from the ‘Laboratories of Democracy, The National HIRE Newsletter
(Spring 2006.) Modeled generally on the approach taken in the federally regulated banking and securities industries, the TSA scheme distinguishes between serious offenses whose nature would raise a reasonable
33
Collateral Consequences of Conviction: State Laws Limiting Consideration of Conviction in Employment and Licensure, The National
HIRE Network Newsletter, November 2005, available at http://
www.hirenetwork.org/pdfs/HIRE%20Newsletter%20Nov%2005.pdf.
25. N.Y.S. Human Rights Law, N.Y. Exec. Law § 296(16). Employers may not discriminate against applicants with criminal records unless: (1) there is a “direct relationship” between one or more of the
previous criminal offenses and the specific license or employment
sought, or (2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or
welfare of specific individuals or the general public. The law sets out
additional factors to determine whether the “direct relationship” is “sufficiently attenuated” to warrant the issuance of the license or employment: (1) “the public policy of this state . . . to encourage the licensure
and employment of all persons previously convicted of one or more
criminal offenses;” 2) specific duties necessarily related to the employment; (3) the relation of the conviction to the applicant’s ability to
perform his responsibilities; (4) amount of elapsed time since conviction; (5) the age of the person at the time of offense; (6) the seriousness
of the offense; (7) any efforts toward rehabilitation; and (8) the interest
of the employer of protecting property, and the safety and welfare of individuals or the general public. New York’s law is incorporated into
and enforced through its more general fair employment practices law.
26. See Standards on Collateral Sanctions, commentary at 34-36,
and note 42. See generally Margaret Colgate Love, Starting Over With a
Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30
FORDHAM URBAN LAW JOURNAL 101 (2003).
27. For example, Judge Matthew D’Emic of the Brooklyn mental
health court recounted that he had recently given a limited certificate
of relief from disabilities to a defendant under his supervision who had
been offered a job as a bus driver by the City of New York but was otherwise barred from accepting because of his criminal record.
28. As noted above, the National Conference of Commissioners of
Uniform State Laws (NCCUSL) is drafting a uniform law on Collateral
Consequences and Disqualification of Convicted Persons, and NCCUSL in fact was a co-sponsor of the Brooklyn hearing. Evidently the
testimony at that hearing had essentially the same effect on the NCCUSL drafting committee, since its most recent draft dated November
27, 2006, also proposes a two-stage relief procedure. At the first stage, a
“certificate of relief from disabilities” would be available as early as sentencing, while the second-stage “certificate of good conduct” would be
available after a further waiting period. These certificates would relieve
collateral sanctions as specified, but would not preclude a decisionmaker from considering the facts underlying the conviction.
29. In the most recent NCCUSL draft, see note 28 supra, certificates
would render the underlying convictions inadmissible in a negligent
hiring lawsuit.
30. Under the Massachusetts Criminal Offender Records Information (CORI) system there are four categories of access. Law enforcement has unrestricted access to conviction records, including those that
have been sealed. A few non-law enforcement public entities have
similar unrestricted access, notably the Department of Social Services
and the Department of Early Education and Care. Certain employers
(schools, nursing homes) have similar unrestricted access, except to
sealed records. A third category of access is “discretionary,” under
which a wide variety of designated agencies (such as security companies, insurance agencies, ground transportation carriers, hotels and
restaurants) may apply for “special certification” from the Criminal
History Systems Board to receive an offender’s record—usually only
On review, an individual might seek to argue that engaging in
the conduct underlying the conviction is not a substantial basis
for imposing the penalty; or that individuals who engage in the
conduct but are not convicted are not subject to the same
penalty. The procedures for review and the standard of review
should be the same as those applied to review of other decisions
by the decisionmaker.
19. See Standard 19-3.1 (prohibits disqualification “grounds related
to the conviction, unless engaging in the conduct underlying the conviction would provide a substantial basis for disqualification even if the
person had not been convicted”); Standard 19-3.2 (“The legislature
should establish a process for obtaining review of and relief from, any
discretionary disqualification”) and Standard 19-3.3 (“Each jurisdiction
should encourage the employment of convicted persons by legislative
and executive mandate, through financial incentives and otherwise.”)
20. The commentary to Standard 19-3.3 recognizes that “private
employment opportunities are critical to a successful program of offender reentry.” Thus Standard 19-3.3 calls upon the legislative and
executive branches of government to create additional employment opportunities for convicted persons in the private sector through financial
and other incentives: “if large numbers of private employers impose
broad and absolute bars on hiring individuals with criminal records, offenders will have limited opportunities for employment. Indeed, it
would seem a reasonable public safety measure for the government to
take affirmative steps to help offenders obtain jobs, for there is a high
correlation between steady employment and successful completion of a
term of supervision.” The commentary concedes that “there is a tension between facilitating reentry of convicts and the appearance of rewarding criminality by giving offenders special benefits that are not
available to the law-abiding majority.
21. As noted, if the restriction or disqualification is absolute and
mandated by law, and cannot be justified under Standard 19-2.2, the
legislature should create a waiver or exemption process.) As suggested
by the commentary to Standard 19-3.2, “[o]n review, an individual
might seek to argue that engaging in the conduct underlying the conviction is not a substantial basis for imposing the penalty; or that individuals who engage in the conduct but are not convicted are not
subject to the same penalty.”
22. The Florida executive order by Governor Bush interprets this
phrase to mean “including but not limited to employment within the
agency; employment in facilities licensed, regulated, supervised, or
funded by the agency; employment pursuant to contracts with the
agency; and employment in occupations that the agency licenses or
provides certifications to practice.” The Commission did not adopt this
expansive definition, and leaves it to each jurisdiction to decide how
far to extend the obligation to inventory, modify or eliminate disqualifications, and provide for review and a statement of reasons.
23. The Justice Kennedy Commission urged that jurisdictions establish an accessible process by which offenders who have served their sentences may obtain relief from the collateral consequences of
conviction, in the form of an absolute statutory bar to convicted persons, or a discretionary disqualification based on conviction. The Collateral Sanctions Standards also promote the idea that jurisdictions
should have a way for offenders to avoid particular collateral sanctions,
see Standard 19-2.5(a), and also to obtain the kind of “general forgiveness” contemplated by Section 306.6 of the Model Penal Code. See
Standard 19-2.5(c), commentary at 35-36.
24. See Love, supra note 4, chart No. 6 (Consideration of Criminal
Record in Licensing and Employment). See also Love, Relief from the
34
32. Safer is now the largest community-based provider of support
services for people with criminal records in the United States. The organization recognizes that individuals leaving prison face a stigma that
make finding employment difficult, yet this population desperately
needs jobs if they are going to turn their lives around and support their
families. The Safer Foundation, Letter from the President, available at
http://www.saferfoundation.org/viewpage.asp?id=269. The Commission met twice with officials from the Safer Foundation, on February
10 and March 30, 2006, and attended a meeting at which formerly
incarcerated people described their positive experiences in Safer’s
employment programs.
33. The Commission is aware that some large private corporations
have an official policy against hiring or retaining anyone with a criminal record. See, e.g., Wright v. Home Depot, 142 P. 3d 265 (HI,
2006)(under Hawaii fair employment practices law, employer may not
terminate employee unless prior convictions bears a “rational relationship” to his employment). Such blanket exclusionary policies are regrettable. It is hoped that such policies will be reviewed with the same
care that public employers review their exclusionary employment policies, in light of new concerns about offender reentry, to determine if
they are necessary and appropriate.
conviction data and pending cases, which will be granted if the Board
determines by a two-thirds vote that “the public interest in disseminating such information to these parties clearly outweighs the interest in
security and privacy.” Mass. Gen. Laws ch. 6 § 172(c). Private individuals (including the press) may obtain information through a “public access record check” only if the offender is incarcerated, or has been
recently released (one year for misdemeanants, two for felony offenders,
three for persons ineligible for parole). A comprehensive review of the
CORI system, published by the Boston Foundation in May of 2005,
notes that the use of CORI for non-law enforcement purposes has increased in recent years, and that the number of persons and entities excepted from its requirements has been growing. See Boston
Foundation, CORI: Balancing Individual Rights and Public Access, available at http://www.tbf.org/uploadedFiles/CORI%20Report.pdf. Additional recommendations relating to criminal records are contained in
Report 103D.
31. Standard 19-3.3 provides that “Each jurisdiction should encourage the employment of convicted persons by legislative and executive
mandate, through financial incentives and otherwise.” See note 17,
supra, for a discussion of the commentary to this standard.
31. Petersilia, supra note 1 at 196.
35
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Report to the House of Delegates On Access to
and Use of Criminal Records
Midyear Meeting, 2007
Recommendation
record, making it practicable for an employer in Colorado to
find out about the trouble that his newest employee got into as
a youngster 20 years ago in New Jersey.4
In some states, criminal history information—including arrest records that did not result in a conviction—is freely available on the internet to members of the public. A “Google”
search for someone’s name may bring up an unsolicited offer
from a private screening company to do a criminal background
check on the person for a nominal fee.5 Even some courts are
taking steps to make their records more generally accessible to
the public.6
Particularly since 9/11, a heightened concern for internal
security has translated into a spate of new laws requiring
records checks upon application for various professional occupations and employments.7 Numerous federal and state laws
bar people with a criminal record from working in areas with
some security nexus, such as transportation, and with vulnerable populations such as children and the elderly, without regard to the nature of the conviction, how long ago it occurred,
or what the people have since made of their lives.8 Even if a
law does not create an absolute bar to employment or licensing, people with a record are unlikely to be given an opportunity in a climate that rewards risk-avoidance.9 Quite apart
from the devastating effect on individuals who have worked
hard to put their past behind them, serious problems of inaccuracy and misidentification are making life miserable for people
who in fact have no record at all.
In most states, a routine background check can also bring up
criminal records that did not result in conviction (including arrest records that resulted in no charges, charges that were dismissed, acquittals/reversals, and deferred adjudication or
probation before judgment). While some states prohibit employers from taking arrest records into account in an employment decision, most do not. For a variety of reasons, it is more
likely that the average African-American male will have accumulated an arrest record by the time he reaches his early twenties. It is therefore all the more imperative that the
disqualifying effect of arrest records by themselves be addressed.
Taken together, these trends have made it more difficult
than ever to overcome the stigma of a conviction or the associated legal disabilities. Most troublesome for public safety,
they have created an environment in which even the most
motivated ex-offenders cannot provide for themselves and
their families, making them likely candidates for recidivism.
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop policies governing access to and use of criminal records for
non-law enforcement purposes that would balance the public’s
right to information against the government’s interest in encouraging successful offender reentry and reintegration.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to develop systemic reporting systems that will maximize reliability,
integrity, authenticity and accuracy of criminal records.
Where records are to be made available for non-law enforcement purposes, jurisdictions should implement procedures to
present records to the lay reader in comprehensible form.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to develop
and implement procedures to permit an individual or the government to challenge the accuracy of criminal history record
information in an official system of criminal records. Any
record determined to be inaccurate or incomplete should be
promptly corrected, and all determinations should be reported
to the individual and the government in a timely fashion.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to establish standards and appropriate controls to ensure accuracy and
reliability of criminal records. Private companies should be restricted to the extent legally possible from reporting records
that have been sealed or expunged. If such companies are permitted to reveal a sealed or expunged record, they should be
required at the same time to report the fact that the record has
been sealed or expunged and the legal effect of such action.
Report
In the past ten years, criminal records1 have become widely
available and put to use for a variety of non-law enforcement
purposes.2 Technological advances coupled with heightened
security concerns have enabled and encouraged employers and
landlords to seek access to criminal history information about
applicants for jobs and housing, and even about incumbent
employees.3 Private screening companies have taken most of
the work out of finding out an individual’s complete criminal
36
The question of public access to criminal records is a nettleIronically, well-intentioned government efforts to enhance sesome one with which the Commission wrestled. Because uncurity may be taking us in the opposite direction.
refined criminal record information can be difficult to read and
To be sure, employers are entitled to know whether the permisleading
to lay readers, it should be presented to members of
son who is applying for a job has a criminal record that would
the
public
in
a comprehensible and useful form. In addition,
cast doubt upon his or her fitness for the position being applied
the
Commission
considered whether jurisdictions should take
for, just as they are entitled to know that an existing employee
steps
to
ensure
that
only law enforcement agencies have access
has been arrested for conduct that would jeopardize the public
to
records
of
closed
cases
that did not result in a conviction,
safety or public trust. To take the most extreme example, an
including
arrest
records
that
resulted in no charges, charges
airline should be entitled to know if an applicant for a pilot’s
that were dismissed, acquittals/reversals, and deferred adjudicajob has a record of DUI or drug possession arrests, just as it
tion or probation before judgment. Most statewide criminal
should be entitled to know if one of its current pilots has been
record repositories limit public inspection of records of closed
arrested as the result of a bar fight. A bank or store should be
cases that did not result in a conviction, including cases where
entitled to know if an applicant for employment has been concharges were dismissed or set aside after successful completion
victed of embezzlement or theft, just as a pharmacist should be
of a period of probation, pursuant to a deferred adjudication or
entitled to know if a prospective employee has a lengthy record
deferred sentencing scheme. The Commission’s decided to
of drug arrests. Crafting a balanced records access policy that
defer, until the August 2007 House meetsatisfies an employer’s legitimate need to
ing, making a recommendation on what if
know as well as an employee’s equally leany limits ought to be placed on access to
gitimate need to be able at some point to
criminal history information.
move on with his life — and the governFinally, the Commission urges jurisdicment’s interest in helping him do so — is
Even if a law does not
tions to establish standards for and monione of the more important challenges of
tor the activities of entities that are in the
an effective criminal records policy.
create an absolute bar to
business of conducting criminal backThe resolutions recommended by the
ground checks for employment and other
Commission urge jurisdictions to estabemployment or licensing,
purposes, and to establish appropriate conlish records systems that control access to
trols for accuracy and reliability of records.
and use of criminal history information
people with a record are
The Federal Trade Commission has taken
for non-law enforcement purposes, balthe position that the Fair Credit Reportancing the public’s reasonable right to
unlikely to be given an oping Act covers the activities of private
know against the government’s compelling interest in encouraging successful
portunity in a climate that screening companies, which means that
an employer seeking information about an
offender reentry and reintegration. States
applicant’s
criminal record from a screenthat have open access policies should
rewards risk-avoidance.
ing company must first get the applicant’s
consider whether systems that regulate
written authorization, then provide the
public access, such as the Massachusetts
applicant with the copy of any investigaCORI system, would better serve the sevtive report generated, and notice of any
eral competing social interests.10 Open
adverse action taken.14 With stepped-up
access systems, like some registries, tend
to be ineffective in enhancing public safety, because they tend
education of employers about the requirements of the FCRA,
to discourage the sort of offender reintegration that reduces reand enforcement of its requirements by the FTC, individuals
cidivism. The citizenry cannot and should not be put in the
should have greater protections from mistake, and from unwarposition, as individual employers and landlords and neighbors,
ranted invasions of privacy.
of making public policy through ad hoc individual decisions
Apart from whatever limits on public access are imposed by
based solely upon an individual’s criminal record.11
the state repository of records, the Commission notes that in
many states courts are given authority, upon an individual’s peThe Commission also urges that jurisdictions take steps to
maximize the reliability and accuracy of criminal records. The
tition, to seal (or expunge, set aside, vacate, annul) that indiCommission heard testimony about the hardship caused by invidual’s record of conviction, upon successful completion of
accurate and incomplete reporting, by mistaken identity and
sentence, or at some reasonable time thereafter. Most states
false positives based on similar names, and by the growing pheprovide that such judicial sealing or expungement orders renomenon of criminal identity theft.12 Compounding these
store recipients to the legal status he or she enjoyed prior to
record inaccuracies is the difficulty of correcting them. Jurisconviction, and permit them to deny that they were ever condictions should therefore implement procedures to minimize
victed, including when asked to report prior convictions on an
the possibility of false positives, to allow individuals or the
employment application. In a few states the record is degovernment to challenge the accuracy of criminal history
stroyed entirely.15 The Commission determined to defer acrecord information, and to remedy the problem of inaccurate
tion on a proposal to endorse judicial sealing or expungement
or incomplete records in a timely manner.13 Finally, we recomas a general restoration mechanism, instead endorsing the
mend that all dispositions be reported in a timely fashion,
more transparent relief orders called for in the Commission’s
which is particularly important where a disposition is favorable
Report No. 103C.16 However, the Commission does believe
to the defendant.
that private screening companies should be restricted to the
37
extent legally possible from reporting records that have been
sealed or expunged, or whose public availability has been otherwise limited.17 If such companies are permitted to reveal a
sealed or expunged record, they should be required at the same
time to report the fact that the record has been sealed or expunged and the legal effect of such action.
courts has been greatly facilitated by the Internet. In November 2002,
the Pennsylvania State Police implemented its “PATCH system,” a
mechanism for ordering a criminal record over the internet. In the first
year that the PATCH system was in operation, the PSP completed
567,209 background checks, up from 412,324 requests processed the previous year. At the PSP’s budget hearing before the Senate Appropriations Committee in the spring of 2005, its Commissioner testified that
the State Police had performed 1.7 million criminal record checks in the
prior year. See Dietrich, supra note 1 at 3; see also Glenn May, Online
Background Checks Booming, Pittsburgh Tribune -Review (Nov. 30, 2003).
6. Ms. Dietrich testified that the Administrative Office of Pennsylvania Courts (“AOPC”) is planning to make criminal record information even more readily available to the public. It has established a
website on which the criminal court docket sheets from the entire state
will be made available to anyone with Internet access. Unlike a PSP
record check through the Internet, the AOPC record check is nearly
instantaneous and requires no fee.
“Advocates have argued that AOPC’s website will greatly increase the barriers already encountered by [people with criminal
records] in Pennsylvania. The response has been that court
records have always been publicly available, so why should someone who wants to see them be forced to undergo the effort of
traveling to the courthouse? The answer is in a concept known
as “practical obscurity.” The making of records available to the
public at the courthouse balances public access with some privacy for [convicted persons,]because it requires some effort to obtain the information. This balance is upset when information is
available at the click of a computer mouse.”
Deitrich, supra note 1 at 4.
7. The commercial vendors reported significant increases in business
immediately after 9/11, with ChoicePoint reporting a 30% increase and
HireCheck reporting a 25% increase. See SEARCH, supra note 4 at 32.
Employers confirm that criminal record checks have increasingly become what Ms. Dietrich calls “a staple in their hiring processes.” A
member survey conducted by the Society for Human Resource Management in 2003 revealed that 80% of its organizations conduct criminal
background checks, up from a 51% response rate in a 1996 survey.
8. Ms. Dietrich reported that in Pennsylvania, 43 different occupations in which some people with convictions are barred from working
have been identified, from accountants through veterinarians. See
Community Legal Services, Inc., Legal Remedies and Limitations on the
Employment of Ex-Offenders in Pennsylvania (Oct. 2004). Law students
at the University of Toledo Law School compiled an inventory of the
conviction-related employment disqualifications applicable in Ohio,
and came up with well over 200. See Kimberly R. Mossoney and Cara
A. Roecker, Ohio Collateral Sanctions Project, 36_U. TOLEDO L. REV.
611 (2005).
9. The press has managed to inflame public sentiment, with sensational headlines trumpeting the shocking news that a certain employer
or industry employs people who have at some point in the past been
convicted of a crime. See e.g., Sherri Ackerman, Felons Can Be Child
Care Workers, Tampa Tribune (Dec. 18, 2005), available at
http://news.tbo.com/news/MGBYVZEVCHE.html. Recent research
shows that almost 16 million people in the United States have a felony
record. See Christopher Uggen, et al., “Citizenship, Democracy, and
the Civic Reintegration of Criminal Offenders,” Annals, AAPSS, 208
(May 2006). Given the ever-expanding reach of the criminal justice
system, one can imagine that at some point in the not-too-distant future more people might have a criminal record than not.
Respectfully submitted,
Stephen A. Saltzburg, Co-Chair
James R. Thompson, Co-Chair
February 2007
Endnotes
1. The Commission was assisted in the preparation of this report by
a paper presented at its March 3 hearing by Sharon M. Dietrich, Managing Attorney, Community Legal Services, Inc., Expanded Use of
Criminal Records and Its Impact on Re-entry, available at http://www.
abanet.org/cecs. Ms. Dietrich points out in her paper that there is no
monolithic “criminal record” being examined by employers and others.
Rather, criminal history record information is generally made available
to the public through a variety of sources: state criminal record “central
repositories” (often maintained by the State Police), the courts, private
vendors which prepare reports from public sources, and even correctional institutions and police blotters. A few states have a central
repository of all criminal records information. For example, Massachusetts has its Criminal Offender Record Information (CORI) system, a
computerized system established in the 1970s that tracks information
about anyone in Massachusetts who has been arraigned on a criminal
charge. See Boston Foundation, CORI: Balancing Individual Rights and
Public Access, available at http://www.tbf.org/uploadedFiles/CORI%20
Report.pdf. (“CORI Report”).
2. A survey conducted more than a decade ago for the U.S. Justice
Department found that 47.3 million individuals had state criminal histories, and 25 million individuals had criminal history records in the
FBI’s NCIC. Some FBI criminal information is duplicative of state
records. Use and Management of Criminal History Record Information: A
Comprehensive Report at 25, Bureau of Justice Statistics (1993), available
at http://www.ojp.usdoj.gov/bjs/pub/pdf/cchuse.pdf.
3. For example, from June 1, 2001 through May 31, 2002, noncriminal justice requests comprised more than half of the fingerprints submitted to the FBI for processing, compared to around nine percent in 1993.
Paul L. Woodard and Eric C. Johnson, Compendium of State Privacy and
Security Legislation: 2002 Overview at 9, NJC 200030 (U.S. Department
of Justice, Bureau of Justice Statistics, Nov. 2003)(“Compendium”).
4. A recent report estimated that there are hundreds, maybe even
thousands, of regional and local screening companies, in addition to
several large industry players. See SEARCH, The National Consortium
for Justice Information and Statistics, Report of the National Task Force on
the Commercial Sale of Criminal Justice Record Information (2005); see
also Compendium, supra note 3 at 7-8. Among the latter, the report
noted that ChoicePoint conducted around 3.3 million background
checks in 2002, most of which included a criminal record check. USIS
Transportation Services reported having 30,000 clients and processing
more than 14 million reports per year.
5. According to a national task force report, “[T]he Internet greatly
facilitates (and encourages) access to information for which the browser
would not be inclined to make a trip to the courthouse.” Compendium,
supra note 2 at 29. Ms. Dietrich testified that in Pennsylvania, for instance, accessibility to records from both the Central Repository and the
38
employment decision is made. Afterwards, the employer, as a user of a
consumer report, must notify the job applicant that an adverse decision
was made as a result of the report and must provide, among other
things, the name, address and telephone number of the credit agency
and the right to dispute the accuracy or completeness of the report. 15
U.S.C. § 1681m(a).
15. The Bureau of Justice Statistics reports that 26 states, the District of Columbia, Puerto Rico, and the Virgin Islands have statutes
that provide for the expungement of at least some felony convictions,
and that in 10 of those states, Puerto Rico, and the Virgin Islands, the
record is destroyed by the State criminal history repository. In 12
States and the District of Columbia, the record is retained with the action noted on the record. See Survey of State Criminal History Information Systems, 2003, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/
sschis03.pdf. However, even expunged convictions generally remain
available to courts and law enforcement agencies, and ordinarily revive
in the event of a subsequent offense. See Margaret Colgate Love, Relief
from the Collateral Consequences of a Criminal Conviction: A State-byState Resource Guide at 39-61 (W.S. Hein, 2006), condensed at
http://www.sentencingproject.org/rights-restoration.cfm.
16. See Report 103C on Employment and Licensure of Persons with
a Criminal Record, supra. Only a handful of jurisdictions make judicial
sealing or expungement generally available for adult felony convictions
(Arizona, Kansas, Massachusetts, Nevada, New Hampshire, Puerto
Rico, Utah, Washington). Most of these states impose an eligibility
waiting period that varies depending upon the seriousness of the offense, and exclude the most serious offenses altogether. For example,
Nevada courts have authority to seal all records related to a conviction,
upon the offender’s request, after an eligibility waiting period ranging
from three years for misdemeanors, to 15 years for more serious felonies.
Nev. Rev. Stat. § 179.245(1)(a). This relief is unavailable to sex offenders, and also to anyone who has been arrested during the eligibility
waiting period. In New Hampshire, convictions may be “annulled” following completion of the sentence and expiration of a waiting period
ranging from 1 to 10 years. N.H. Rev. Stat. Ann. §§ 651:5(III) and
(IV). Washington courts are authorized to “vacate” the record of conviction, upon application, for Class B felonies after 10 years, and for
Class C felonies after five. Wash Rev. Code §§ 9.94A.640, 9.95.240,
9.96.060. Class A felonies are ineligible for this relief. Oregon’s expungement remedy applies only to minor (Class C) felonies. Or. Rev.
Stat. § 137.225(1) through (12). An additional number of states offer
an expungement or sealing remedy to first offenders and/or non-violent
offenders, or to probationers or misdemeanants, or to those who have
received an executive pardon. The purpose of these statutes is generally rehabilitative, and most of them permit an applicant for employment to deny having been convicted. See Love, id. at 39-61. Sealing
remedies may permit individuals to deny the fact of their conviction on
employment applications, but they generally do not limit access by law
enforcement agencies, or preclude reliance on the conviction in a subsequent prosecution or sentencing.
17. See SEARCH report, supra note 4 at 22-26.
10. See CORI Report, supra note 1. In Massachusetts access to
court records is not subject to the same constraints as the state-wide
CORI system, but court records are not centralized nor are they conveniently available by electronic means. See Globe Newspapers v. Fenton,
819 F. Supp 89 (D. Mass. 1993)(CORI violated First Amendment to
extent it denied public access to court-maintained alphabetical indices
of defendants in closed criminal trials without an individualized judicial
determination on an adequate record that a particular defendant’s name
had to be sealed or impounded to serve a compelling state interest).
Under Massachusetts law, records of felony convictions may be “sealed”
by the office of probation after 15 years (ten years for misdemeanors), a
remedy that has apparently not attracted the same challenge from the
press. See Mass. Gen. Laws ch. 276, § 100A
11. Elsewhere in our recommendations (see Report No. 103C, supra)
we urge jurisdictions to work with employers and others who have a legitimate need for access to criminal record information to encourage its
more efficient use, and thus to encourage employment of persons with
criminal records where appropriate. Except in cases where there is a
statutory requirement that an agency or employer conduct a criminal
background check, non-law enforcement agencies and employers seeking access to an individual’s criminal record should be required to
demonstrate that the public interest in receiving such information
clearly outweighs the individual’s interest in security and privacy.
12. See Dietrich, supra note 1 at 8-13. Criminal identity theft is a
particularly pernicious type of erroneous criminal record, occurring
when a person who is arrested gives the name, date of birth, and/or social security number of another person. Criminal identity theft is not
an uncommon occurrence. The primary criminal justice report examining this phenomenon estimated that 400,000 Americans were victimized by criminal identity theft in a year’s period. See Report of the
BJS/SEARCH National Focus Group on Identity Theft Victimization and
Criminal Record Repository Operations at 2 (Dec. 2005), available at
http://www.search.org/files/pdf/NatFocusGrpIDTheftVic.pdf.
13. Ms. Dietrich recommends that, in order to avoid false positives,
“date of birth and social security number should be mandatory search
criteria. Never should “matches” be provided for solely a name match.
Moreover, because false positives can be avoided in a fingerprint-based
system, the FBI should continue to avoid providing name-based
checks.” See Dietrich, supra note 1 at 16.
14. Where an employer requests a criminal record report from a
commercial vendor for purposes of a hiring decision it is regarded as a
“consumer report” and is thus governed by the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq. Among the duties that FCRA
imposes in such a situation are the following: 1) The employer must
provide a clear written notice to the job applicant that it may obtain a
consumer report. 15 U.S.C. § 1681b(b)(2). 2) The employer must obtain written authorization from the job applicant to get the report. 15
U.S.C. § 1681b(b)(3). 3) If the employer intends to take adverse action based on the consumer report, a copy of the report and a Federal
Trade Commission Summary of Rights must be provided to the job applicant before the action is taken. 15 U.S.C. § 1681b(b)(3). This requirement permits a job applicant to address the report before an
39
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Report to the House of Delegates
on representation relating to collateral
consequences
Midyear Meeting, 2007
Recommendation
their sentences and take the necessary steps to stay out of further trouble with the law. In short, offender reentry, a new
term for an old concept, was not the business of the bar. Long
prison terms and the increasingly severe effect of collateral
consequences are forcing a change in this traditional way of
looking at the responsibility of defenders and prosecutors alike.
In light of the severity of the collateral sanctions and disqualifications facing many offenders, and the discouraging effect these legal barriers have on successful reentry and
rehabilitation of offenders, the legal community can no longer
turn the blind eye to them. By providing the offender with the
knowledge about collateral consequences at the front-end of
the system, and later with adequate legal assistance to relieve
the disabilities on the back-end, the chances of individuals
getting their life back on track are increased. When offenders
are able to successfully return to their communities and become law abiding citizens, public safety is enhanced and justice is truly served.
The ABA Criminal Justice Standards on Pleas of Guilty,
and the Standards on Collateral Sanctions and Discretionary
Disqualification of Convicted Persons, both require that a defendant be advised of collateral consequences before plea and
at sentencing.2 The Collateral Sanctions Standards also provide that jurisdictions, in order to facilitate this duty of advisement, should collect all collateral sanctions in their statute
books in a single chapter or section of the jurisdiction’s criminal code, and identify with particularity the type, severity and
duration of collateral sanctions applicable to each offense.3
The recommendations of the Justice Kennedy Commission,
adopted by the House of Delegates as ABA policy in 2004,
urged bar associations to establish programs to encourage and
train lawyers to assist prisoners in applying for relief from collateral sanctions. We take the further step of urging states, in
the first Resolved Clause, to assist defense counsel in advising
clients of the collateral consequences of criminal convictions
during representation.4
The Collateral Sanctions Standards already require a court
“to ensure, before accepting a plea of guilty, that the defendant
has been informed of collateral sanctions made applicable to
the offense or offenses of conviction.” Standard 19-2.3(a).
The court’s duty may be satisfied by confirming on the record
that defense counsel’s duty of advisement has been discharged.
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to assist defense
counsel in advising clients of the collateral consequences of
criminal convictions during representation.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial, and local governments to encourage prosecutors to inform themselves of the collateral consequences that may apply in particular cases.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to authorize and fund public defender services, legal aid services,
and/or other legal service providers, to provide offenders with
appropriate assistance in removing or neutralizing the collateral consequences of a criminal record.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments to require
prison officials to ensure that prisoners are informed prior to
release about the process for removing or neutralizing the collateral consequences of a criminal record, and to require probation and parole officials similarly to advise persons under
their supervision about this process.
Report
In his 2003 address to the American Bar Association, Justice
Anthony M. Kennedy specifically asked the legal community
to re-evaluate its “obsessive focus” on the process for determining guilt or innocence to the exclusion of considering what
happens to a person once finally convicted and “taken away.”
As Justice Kennedy said, “When the door is locked against the
prisoner, we do not think about what is behind it.” 1 Traditionally, the role of both defense attorney and prosecutor
ended after sentencing. The case was closed and the client
went away, either to prison or back to the community. It was
not the responsibility of either the defender or the prosecutor
to monitor or even be concerned with what happened to a person after that. Defenders and prosecutors alike have assumed
that social workers and parole supervision agencies will do
what is necessary to ensure that offenders successfully complete
40
burden or detriment upon a convicted offender as the sentence
Id. The effect of the resolution is to make advice about collatitself. It is important for prosecutors to exercise their discreeral consequences as much of a part of defense practice as is
tion with an eye to the overall impact of a charging decision or
the investigation and preparation of the client’s case, and to
sentencing recommendation upon a particular individual.
insist that governments make it easier for defense counsel in
Robert M.A. Johnson — District Attorney of Anoka
carrying out this responsibility. The most helpful form such asCounty,
Minnesota and Chair-Elect of the ABA Criminal Jussistance can take is to collect and make available specific intice
Section,
and a Liaison Member of the Commission — has
formation about applicable collateral consequences to all
stated
that
in
seeking justice, prosecutors must consider the
criminal justice practitioners.
circumstances
of the offense, the offender, and the conseTraditionally, the role of the defender was to minimize the
quences of the conviction. Mr. Johnson, a former president of
pain the clients suffer, and the pain was defined as incarcerathe National District Attorneys Association, stated in his 2001
tion or financial penalties. Today, the severity of collateral
NDAA President’s message that:
consequences has changed the parameters of that calculation,
and defenders must reorient their thinking about what miniAt times, the collateral consequences of a conviction are
mizing their clients’ pain now means. Collateral consequences
so severe that we are unable to deliver a proportionate
of conviction may pose barriers to employment, housing, edupenalty in the criminal justice system without disproporcation, and, for non-citizens, their ability to remain in the
tionate collateral consequences. There
United States. Before a defendant pleads
must be some reasonable relief mechaguilty and at sentencing, defense counsel
nism. It is not so much the existence of
should assure that the defendant underthe consequences, but the lack of the
stands what a conviction means and be
ability of prosecutors and judges to
prepared to argue for a sentence that proIt is important for
control the whole range of restrictions
vides the defendant with as few detrimenand punishment imposed on an oftal collateral consequences as possible.
prosecutors to exercise
fender that is the problem. As a proseDefenders must begin to interview every
cutor,
you must comprehend this full
client about their immigration, housing,
their discretion with
range of consequences that flow from a
employment status, and other relative iscrucial conviction. If not, we will suffer
sues in order to determine if civil disabilian eye to the overall
the disrespect and lose the confidence
ties will apply. If a red flag is raised
of the very society we seek to protect.6
concerning any of these issues, that client
impact of a charging
should be referred to a civil legal attorney
or specialist for advice concerning the exIt is encouraging that the National Asdecision or sentencing
tent and direction of any potential collatsociation of District Attorneys has begun
eral consequences. Upon receiving this
to address the issues involved in offender
recommendation upon
crucial information, the client will be in a
reentry, with an eye toward engaging more
better position to make an informed and
in the process.7 The responsibility of a
a particular individual.
knowing decision about how to proceed
prosecutor differs from that of the usual adin the case.
vocate, because the prosecutor is charged
The Commission believes that senwith seeking justice and not merely wintencing courts should ensure that defendning convictions. Accordingly, prosecuers have carried out their obligation to advise the client about
tors should consider the important implications of collateral
collateral consequences before accepting a plea and at senconsequences if they are to ensure that justice is achieved.
tencing. One of the core concerns underlying this obligation
In the third resolved clause, the American Bar Association
is that people who plead guilty should know and understand
urges legislatures to authorize and fund public defender servthe consequences of their guilty plea. Under the current sysices, legal aid services, and/or other legal service providers, to
tem, courts shoulder virtually no responsibility for ensuring
provide offenders with assistance in mitigating or neutralizing
that defendants are adequately aware of the consequences, outthe collateral consequences of a criminal record. As the disside of the criminal justice system, that they may face after
cussion below indicates, the issue of who should provide servconviction.5 There still remains a tremendous need for courts
ices to offenders seeking to remove or ameliorate collateral
and legislatures to address the collateral consequences probsanctions is a controversial one in the defense community.
lem, and we urge jurisdictions to move in this direction.
There is on-going debate within the defense community
Relatedly, in the second resolved clause, prosecutors are
about whether the role of the defender should be expanded to
asked to inform themselves about the collateral consequences
include reentry services. During the Commission’s hearings,
that may apply in particular cases. The goal is ensure that
that debate was fully aired. Peter Ozanne, Executive Director
prosecutors are knowledgeable regarding the consequences of
of the Oregon Office of the State Public Defender, testified
their charging decisions and sentencing recommendations,
that public defenders should concentrate on becoming great
beyond the amount of time a person may be incarcerated or
lawyers in the court room and undertake no role in community
placed on probation and the amount of a fine. All participants
corrections or reentry. Edwin Burnett, Public Defender in
in the criminal justice system should understand that the colCook County, Illinois, stated in his testimony that treatment
lateral consequences of conviction may impose as great a
and re-entry are not on the defense counsel priority list, and
41
socioeconomic factors that drive criminal behavior. Robin
that defender offices are not set up to handle clients after their
Steinberg of the Bronx Defenders has stated that “working
cases are adjudicated. He further stated that the natural focus
compassionately with indigent clients means seeing firsthand
is on the courtroom, because the defense bar is measured by efthat
the problems and challenges they face stretch farther than
fective representation and not social referrals. The views of
the
confines
of the criminal cases before them.”11
Mssrs. Ozanne and Burnett reflect the concern of many within
In a traditional public defender office, the goal is to remove
the defense bar who argue that if a public defender office elethe immediate threat of legal jeopardy, not address larger isvates social work and community-outreach practice institusues. The traditional approach does not allow the defender to
tionally, it risks professional imbalance with its lawyers losing
delve deeper to address the issues that contributed to the
focus on their core role of plea negotiation and trial litigation.
client’s involvement with the criminal justice system. The hoThe opposite viewpoint was expressed by three other senior
listic representation model does not change the fundamental
public defenders who testified. Paul DeWolfe, Montgomery
and compelling value of getting an acquittal, less jail time, or
County (MD) Public Defender, participates in the Montavoiding prison altogether for a client. It merely adds the goal
gomery County Jail’s Pre-Release Center, working with social
of making a long-term difference in the life of the client. By
workers and probation officers in a multi-disciplinary team approviding civil legal services to address offender’s civil disabiliproach to reentry. He even has an office inside the jail itself.
ties, defender offices are encouraged to see beyond the courtHe has organized a program whereby private law firms working
room disposition of their criminal cases
under his supervision provide pro bono
and address the underlying social issues
legal services to the offenders returning to
hindering their client’s successful reintethe community through the Pre-Release
gration into the community.
Center.8 Jim Neuhard, Director of
Several public defender organizations
Michigan’s State Appellate Defender OfDefender offices are
have already begun providing reentry-refice, agreed that defenders should form
lated services or are soon to begin. Some
partnerships with other service organizaencouraged to see beyond
of these services include representation in
tions to provide re-entry legal services.
employment-related
proceedings, deportaHe believes that the traditional public dethe courtroom disposition
tion-related proceedings, and housing-refense system model does not sufficiently
lated proceedings, as well as assistance
consider the long-range outcomes for the
of their criminal cases
with expunging criminal records. In addiclient, and that defenders should concern
tion to the Maryland and Arkansas prothemselves with the civil consequences of
and address the
grams described above, the Bronx
criminal convictions during legal repreDefenders, a community defender organisentation. Indeed, he urged that it should
underlying social issues
zation has instituted a Civil Action Projbe an ethical responsibility for the defense
ect that provides comprehensive legal
bar to understand the collateral consehindering their client’s
services to clients and their families by
quences facing their clients. Didi
fully integrating civil representation with
Sallings, Executive Director of the
successful reintegration
their criminal defense practice. 12 Its goal
Arkansas Public Defender Commission,
told the Commission that her office has
is to develop proactive approaches to
into the community.
already expanded the defender’s role outminimize the severe and often unforeseen
side of the courtroom to provide clients
consequences from criminal proceedings
with assistance in expunging criminal
and facilitate the reentry of clients into
records. She stated that there is a trementhe community. The Bronx Defenders is
dous need for public defenders to provide post-adjudication
also dedicated to addressing the underlying issues that led to
services to assist their clients in getting their lives back on
their client’s involvement with the criminal justice system in
track. These three represent the view that defenders must take
the first place.
a broader approach to their responsibilities to clients if they
The Neighborhood Defender Services (“NDS”) of Harlem,
want to avoid having those clients come back into the system
also has a team of attorneys to represent its clients in the civil
again and again.
matters that arise from their criminal cases.13 NDS realizes
The Commission believes that public defenders and the
that the potential consequences of those civil matters are
criminal defense bar generally must re-evaluate traditional
often more severe than the disposition of the criminal case.
philosophies and practices relating to the scope of legal repreThe NDS civil team represents clients in a broad range of
sentation. Over the past two decades, many public defender
civil matters, principally police brutality and misconduct,
offices across the country have broadened the range of defense
housing matters and family court child protective proceedservices provided to indigent clients to include what is now
ings. Similarly, the Public Defender Service of the District of
commonly referred to as “holistic representation” or “whole
Columbia has a civil legal services unit that will shortly begin
client representation.” These concepts are born out of the
to handle a wide range of cases involving the collateral conseconcept of therapeutic jurisprudence,9 which stems from the
quences of a criminal arrest, conviction or an extended period
legal academy, and the problem-solving lawyering concept,10
of incarceration, such as civil forfeiture, eviction, denial of
public
benefits, termination of parental rights, deportation
which stems from practitioners. The holistic model recasts
the defense role by considering the social, psychological and
and academic expulsion.14
42
each probationer as he or she “graduates,” so that they can
easily file the form with the court and obtain expungement.
Law school clinics can serve as a critical link in providing
legal services to people seeking relief from the collateral consequences of conviction. Law schools today are generally doing
little to prepare future lawyers to deal with the legal, social,
and administrative problems arising from criminal convictions
in this country. Training lawyers to become social engineers18
who are highly skilled, perceptive, sensitive lawyers who understand the importance of solving “problems of local communities” and “bettering conditions of the underprivileged
citizens” is generally not emphasized in traditional legal education, where the focus tends to be on the workings of the adversary system.19 Clinical legal education has been and remains
available as a tool to sensitize future attorneys to the social,
economic, and political forces that affect their lives of their
clients and strengthen their concern for social justice. An understanding of these critical issues will arm the next generation
of attorneys with problem-solving techniques that can be used
to improve the overall efficacy of the criminal justice system.
The Justice Kennedy Commission urged law schools to establish reentry clinics to assist individuals returning from
prison or with criminal convictions regain legal rights and
privileges. Two universities, New York University (“NYU”)
and University of Maryland, have already established reentry
clinics. NYU launched the first-ever Offender Reentry Clinic
in 2002, and the clinic’s goal was to provide direct representation for ex-offenders and also to expose students in the clinic
to a wide range of policy and administrative issues involved in
reentry.20 The objectives of the clinic were twofold. First, the
course sought to familiarize students with the range of legal,
administrative, and social restrictions imposed on individuals
with criminal records as well as their families and communities. Second, the course was designed to examine the role that
lawyers might play in helping ex-offenders navigate the legal
obstacles they face upon return from prison. To date, the students have covered a range of substantive legal issues, including felon disenfranchisement and laws governing occupational
bars and licensing restrictions. Because students represent actual clients, the course also offers training in litigation to help
the students develop theories and hone formal advocacy skills.
The University of Maryland Law School also offers a ReEntry of Ex-Offenders Clinical Program. The students’ work
include individual representation on issues related to expungement of criminal records, partnering with the social work
clinic to assist individuals on the verge of release from correctional facilities, and community presentations.21 Students also
work with community organizations providing assistance to exoffenders, attend legislative hearings, and meet with correctional and law enforcement agencies to advocate on behalf of
offenders. The clinic offers an ambitious and exciting opportunity for students to engage in a critical examination of important and complex criminal justice issues.
In its final resolved clause, the Commission urges governments to require prison officials to ensure that prisoners are
informed prior to release about the process for removing or
neutralizing the collateral consequences of a criminal record,
and to require probation and parole officials similarly to advise persons under their supervision about this process. Many
It helps defenders take the broader approach to helping their
clients if the legal system is flexible enough to ensure a good
outcome for the client and the prosecutor is willing to buy into
a utilitarian approach. For example, if the law provides for deferred adjudication and eventual expungement of the record
upon successful completion of probation, as it does in Arkansas
and Connecticut and many other states, a defender is naturally
more willing to encourage the client with a substance abuse
problem to plead guilty and participate in a community-based
therapeutic treatment program. If it does not, and the client is
going to end up with a record anyway, it makes an onerous
treatment regime seem comparatively unappealing.
If a conviction occurs and collateral consequences are imposed, offenders need legal assistance in seeking restoration of
their rights and privileges. In urging authorization and funding of public defender services, legal aid services, and/or other
legal service providers, to provide offenders with assistance,
the Commission calls on governments to provide new funds
for this purpose, not to shifts funds so that for every extra social worker or civil attorney the public defender office hires,
there will be one less attorney that the office can employ in
criminal representation. The Commission recognizes that the
overwhelming caseload and diminishing resources currently
available to support the fundamentals of criminal defense representation make this recommendation unattainable for most
public defense practitioners without additional funding.
Problem solving approaches demand more resources if they
are to be practiced effectively, and most defenders barely have
the time or resources to perform the basic responsibilities of
client representation.
Assistance in overcoming collateral consequences may also
come from other sources, namely prosecutors and correctional
officials. District Attorney Michael D. Schrunk of Multnomah County, Oregon, testified that his office had recently
sponsored a program called “Project Clean Slate,” to provide
county residents with an opportunity to apply for expungement, handle outstanding warrants, clear unpaid fines, and
clear driver’s license suspensions, and received an overwhelming response.15 On the scheduled day of the program local law
enforcement officials and attorneys met with 800 people to attempt to resolve various outstanding problems related to their
criminal records and court orders; an additional 1700 individuals who registered for the program were assisted over the
course of nine weeks following the event. In Multnomah
County, expungement requests are brought to the court by the
DA’s office, and the court generally grants any request upon
the prosecutor’s recommendation. Mr. Schrunk testified that
he regards expungement as a critical service for former
offenders, since a conviction record can hinder them in
getting jobs and housing.16
David Guntharpe of the Arkansas Department of
Community Corrections testified that his legal staff had
recently discovered a little-known Arkansas statute that allows
probationers who have successfully completed all of the terms
of their probation to petition the court to dismiss the charges
against them and expunge the record.17 Understanding that
many of the people supervised by his agency do not have the
means to hire a lawyer and go to court, Mr. Guntharpe
directed his staff to prepare a model petition form to give to
43
offenders are not informed of the available remedies, and these
agencies have the unique opportunity to reach offenders in
order to provide this important information. The efforts of the
Arkansas Department of Community Correction described
above could be a model for other supervision agencies. Legislatures are also beginning to recognize this need.22
7. In July 2005, the National District Attorneys Association
adopted “Policy Positions on Prisoner Reentry Issues,” available at
http://www.ndaa-apri.org/pdf/policy_position_prisoner_reentry_
july_17_05.pdf. This document affirms prosecutors’ interest in offender reentry as a public safety issue, stating that “America’s prosecutors should, where practicable, be participants in addressing th[e] issue
[of offender reentry] in an effort to reduce recidivism and ensure the
safety of victims and the community.” It recommends that “prosecutors
should educate themselves regarding the reentry programs that are provided or being proposed in their local jails and state prisons in addition
to those reintegration plans that are being supervised by probation, parole, or their local community services board and be supportive of appropriate programs and plans.”
8. The Jail’s reentry program, organized by Montgomery County
Corrections Chief Art Wallenstein and Jail Administrator Rob Green,
is six to nine months in duration, and during this period participants
are allowed to work during the day and receive counseling and other
supportive services at night. They are permitted to save all their earnings from work in order to help them obtain housing and other services
upon release.
9. Therapeutic jurisprudence is the “study of the role of the law as a
therapeutic agent.” It focuses on the law’s impact on emotional life and
on psychological well-being. Therapeutic jurisprudence focuses
attention on humanizing the law and concerning itself with the human,
emotional, psychological side of law and the legal process. See David
Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L. Rev.
125, 125 (2000).
10. Problem solving lawyering provides integrated services to
clients; promotes collaboration between civil legal aid and public defense practitioners to help clients and communities; relies on other professionals such as social workers, mental health experts and mitigation
specialists to address the accused person’s underlying problems. See,
e.g., Cait Clarke and James Neuhard, Making the Case: Therapeutic Jurisprudence and Problem Solving Practices Positively Impact Clients, Justice
Systems and Communities They Serve, by 17 St. Thomas L. Rev. 781, 781
fn 3 (2005).
11. Robin G. Steinberg, Beyond Lawyering: How holistic representation makes for good policy, better lawyers and more satisfied clients, at 2,
available at http://www.pili.org/2005r/dmdocuments/IV.Panel%
20Robin%20HolisticRepres.pdf
12. http://www.bronxdefenders.org/comm/006.html
13. http://www.ndsny.org/programs.htm#civdefense
14. http://www.pdsdc.org/Civil/index.asp
15. March 31 Commission Hearing Notes, available at
http://www.abanet.org/cecs. In addition, information on Project Clean
Slate is available under “Hearing Materials” on this website.
16. Under Or. Rev. Stat. § 137.225(1) through (12), the sentencing
court is authorized to “set aside” misdemeanors and minor felonies
(Class C, except sex and traffic offenses, and some other minor crimes).
Upon application and a determination of eligibility, an order must issue
unless the court makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of
justice. § 137.225(11). “Upon entry of such an order, such conviction,
arrest or other proceeding shall be deemed not to have occurred, and
the applicant may answer accordingly any questions relating to their
occurrence.” Or. Rev. Stat. § 137.225(4).
17. Under Ark. Code Ann. § 5-4-311(a) and (b), probationers for
whom a judgment of conviction was not entered, including those who
went to trial, are entitled to apply to the sentencing court upon
Respectfully submitted,
Stephen A. Saltzburg, Co-Chair
James R. Thompson, Co-Chair
February 2007
Endnotes
1. An Address by Anthony M. Kennedy Associate Justice, Supreme
Court of the United States, American Bar Association Annual Meeting (August 9, 2003) at 2-3, available at http://www.abanet.org/cecs.
2. Standard 14-1.4(c) provides that before accepting a plea, the
court should advise the defendant of the possibility of various collateral
sanctions. Standard 14-3.2(f) provides that defense counsel should advise the defendant of collateral sanctions before the entry of a plea of
guilty “to the extent possible.” Standards 19-2.3(a) and 19-2.4(a) both
require that the defendant be notified of the collateral sanctions that
will result from the conviction, by the court or defense counsel, before
pleading guilty and before sentencing, respectively.
3. Standard 19-2.1.
4. In its original recommendation to the House, the Commission
urged jurisdictions to assist defenders in carrying out their “ethical
duty” to advise clients about collateral consequences. In further discussions, the Commission was persuaded that it is neither necessary nor
useful to categorically identify defense counsel’s obligation to advise of
collateral consequences as an “ethical” one. In some cases, depending
upon the nature and severity of the collateral sanction in relation to
the pending criminal charges, a defender’s failure to advise might
amount to professional incompetence. A noncitizen client’s exposure
to almost certain deportation in the event of a felony conviction is the
paradigmatic case in which failure to advise of collateral sanctions
would raise competency questions. In many other cases, however, failure to advise of each and every collateral penalty would not raise any
such questions, particularly where information about those collateral
penalties was not readily available.
5. Courts have held that while a judge taking a guilty plea must advise of the “direct” consequences (e.g., imprisonment and fine), defendants need not be told by the court or their counsel about collateral
sanctions. See, e.g., Foo v. State, 102 P.3d 346, 357-58 (Hawaii 2004);
People v. Becker, 800 N.Y.S.2d 499, 502-03 (Crim. Ct. 2005); Page v.
State, 615 S.E.2d 740, 742-43 (S.C. 2005). For a discussion of this principle, see Gabriel J. Chin & Richard W. Holmes, Effective Assistance of
Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697
(2002). Even in the absence of constitutional requirement, however, a
majority of the states provide for disclosure of some collateral sanctions.
For example, at least two dozen jurisdictions by court rule or statute require the court to advise defendants of potential immigration consequences before accepting a guilty plea. For complete statutory
citations, see National Conference of Commissioners on Uniform State
Laws, Uniform Law on Collateral Sanctions and Disqualifications,
Draft dated November 27, 2006, at notes 87-91.
6. Robert M.A. Johnson, Message from the President: Collateral Consequences, The Prosecutor, May-June 2001, available at http://www.
ndaa-apri.org/ndaa/about/president_message_may_june_2001.html.
44
Howard Law School, who conceived of and developed the legal strategy that resulted in the end of legalized racial segregation in the United
States. He taught and mentored Thurgood Marshall and others who argued and won the 1954 U.S. Supreme Court decision in Brown v. Board
of Education. See Genna Rae McNeil, Groundwork: Charles Hamilton
Houston and The Struggle for Civil Rights. Philadelphia, University of
Pennsylvania Press, (1983) at 84. Charles Hamilton Houston’s credo
guides the Howard University School of Law’s mission to this day: “A
lawyer’s either a social engineer or he’s a parasite on society.”
19. Id.
20. http://www.law.nyu.edu/clinics/semester/offender/index.html
21. http://www.law.umaryland.edu/course_info.asp?coursenum=
598D
22. The Florida legislature recently passed a bill requiring county
and local jails to assist inmates in applying for restoration of their civil
rights by providing them upon release with the necessary forms. See
Debbie Cenziper and Gary Fineout, Ex-Felons get help regaining civil
rights, Miami Herald, May 2, 2006. Florida law has for some years required the Department of Corrections to assist inmates released from
state prison or supervision with this process, and to forward their names
upon release to the Clemency Board for consideration for restoration of
rights, though recent litigation suggests that these obligations have
been honored in the breach.
completion of supervision for an order dismissing the charges, and “expunging” the record. According to the Arkansas Department of
Community Correction, a judgment of conviction is not entered in any
case where a prison term or fine is not imposed, so that the relief
afforded by this statute is potentially available to all persons sentenced
to probation only. A person whose record is expunged “shall have all
privileges and rights restored, shall be completely exonerated, and the
record which has been expunged shall not affect any of his civil rights
or liberties, unless otherwise specifically provided for by law.” § 16-90902(a). “Expunge” is defined to mean that the record “shall be sealed,
sequestered, and treated as confidential in accordance with the procedures established by this subchapter,” but “shall not mean the physical
destruction of any records.” Ark. Code. Ann. § 16-90-901(a). Upon
the entry of the order to seal, the underlying conduct “shall be deemed
as a matter of law never to have occurred, and the individual may state
that no such conduct ever occurred and that no such records exist,” including in response to questions. § 16-90-902(b). Records may be disclosed if the person applies for employment with a criminal justice
agency or is subsequently prosecuted for a new crime. § 16-90903(a)(2)-(4). A conviction that has been expunged may not be used
as a predicate offense. See State v. Ross, 39 S.W. 3d 789 (Ark. 2001).
18. The concept of the lawyer as social engineer was originated by
Charles Hamilton Houston, civil rights attorney and former Dean of
45
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Report to the House of Delegates
on training in the exercise of discretion
Midyear Meeting, 2007
Recommendation
important to identify the significant amount of discretion that
exists throughout the criminal justice system, to highlight the
importance of exercising that discretion wisely, and to recommend that criminal justice professionals and their associations
and organizations develop training programs that will assist
them in understanding, adopting and utilizing factors that promote the sound exercise of discretion.
The resolution urges training for all criminal justice professionals who exercise discretion. These include judges,
prosecutors, defense counsel, probation and parole officers,
and correctional officials. It emphasizes that for helpful
training to occur three ingredients are essential. Most important is funding — i.e., new funds are needed for training that
does not now occur. Funding alone is not sufficient, however. Jurisdictions must assure that the work schedules of
those to be trained accommodate new training programs, and
that the new training programs should be credited toward
any continuing education requirements imposed upon criminal justice professionals.
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments, and licensing authorities to support professional associations and organizations
in order to develop programs to train all criminal justice professionals — including judges, prosecutors, defense counsel,
probation and parole officers, and correctional officials — in
understanding, adopting and utilizing factors that promote the
sound exercise of their discretion.
FURTHER RESOLVED, That the American Bar Association
urges federal, state, territorial and local governments and licensing authorities to recognize that such training should be
credited towards continuing education program requirements.
Report
The criminal justice system in the United States is uniquely
decentralized. Approximately ninety-five percent of criminal
cases are prosecuted at the local level, and about 2500 jurisdictions have elected chief prosecutors.1 Within a particular
county or judicial district, a variety of line prosecutors and law
enforcement agents exercise discretion independently of one
another. Probation and parole officers operate with broad discretion at the field level, sometimes reporting to state correctional agencies or courts, and sometimes reporting to the
county. Judges, corrections officials, and parole board members also make independent discretionary decisions.
The discretionary decisions these officials make independently on a daily basis have one thing in common: they have a
profound influence on the lives of criminal defendants, on
their families, and on the community. Ultimately, the decisions could affect whether a defendant will be able to return to
society and remain law-abiding at the conclusion of a courtimposed sentence, whether the victim will be able to overcome the impact of the crime, and whether the community
will accept that justice has been accomplished. However, despite the impact these decisions can have, the assumptions underlying them are rarely articulated or examined. Officials in
different jurisdictions rarely compare notes on the use of discretion, and the exercise of discretion is even more rarely
made the subject of systematic training or regulation.
The Commission was persuaded by Robert Johnson, the
elected prosecutor from Anoka County, MN, and a liaison to
the Commission from the Criminal Justice Section, that it is
Judges
The American Bar Association has consistently worked to
shore up the discretionary role of judges in criminal sentencing. The ABA Sentencing Standards (3d ed.) opt for some
form of guidelines to avoid unwarranted disparities in sentencing while assuring that a sentencing judge may consider the
unique characteristics of each offender and the circumstances
in which an offense was committed. The standards assume
that judges will exercise their discretion appropriately, but the
fact is that in many jurisdictions judges, whether elected or appointed, receive little training in the range of options available
to them and in the factors that might warrant consideration
when these options are considered. Judicial conferences are
common throughout the United States, and CLE for judges
serves the important function of keeping judges current on
legal developments. Training in the appropriate exercise of
discretion should be an important part of judicial training. It
is also important to keep judges aware of sentencing options,
including rehabilitative programs that may be available within
their jurisdiction. Accurate and complete information will
help to ensure that a judge is able to develop the most appropriate sentence in each case.
Sentencing guidelines systems have been adopted in
the federal system and some states. One principal goal is
46
Mr. Johnson pointed out that prosecutors themselves tend
to set funding priorities for training in order to carry out their
responsibilities to the public. Thus, they have developed
training in the mechanics of prosecution — such as search and
seizure, confessions, lineups, DNA, cybercrime, and other
trial-related aspects of their work — because they believe that
Prosecutors
trial tactics training improves their ability to win cases. But,
Prosecutors act as gatekeepers. No person may be convicted of
he
emphasized that the public does not ask prosecutors simply
a crime unless a prosecutor brings and pursues a charge against
2
to
win
cases. It asks prosecutors to reduce crime and victimizahim. Prosecutors have traditionally controlled programs that
tion, which requires development of a broader and more nudivert offenders out of the criminal justice system and into soanced crime control strategy. Mr. Johnson urged that training
cial service treatment, and programs that work to defer adjudiin the exercise of discretion - arguably the most important ascation and sentencing. In recognition of their responsibility for
pect of a prosecutor’s responsibility – might improve prosecupublic safety, prosecutors have more recently become involved
torial effectiveness because the exercise of discretion is at the
in crime prevention strategies.3 Prosecutor-driven prevention
core of an overall strategy to reduce crime.
programs may deal with issues ranging from community proseTraining may encourage prosecutors to experiment with
cution, mental health, child protection, and juvenile justice, to
programs that divert an offender into an
violence against women, gun violence,
alternative sanctioning system that may
and white collar crime.
benefit both the victim and society.
Since successful reentry and reintegraTraining programs can enable prosecutors
tion of offenders means less crime and
who
have such programs to share informafewer victims, prosecutors have also taken
It is important to
tion about successes and failures with
an interest in reentry programs and the
other prosecutors and compare notes on
collateral consequences of conviction.4
identify the significant
the best ways of training subordinates in
But this is a new role for prosecutors, and
making
discretionary decisions. Training
it may mean new responsibilities for deamount of discretion
programs may help prosecutors to develop
fense counsel who must learn how to talk
partnerships with courts, defenders, other
with prosecutors about new prosecutorial
that exists throughout
actors in the justice system, community
alternatives. The fact is that as new proservice
providers, and community groups
grams develop, both prosecutors and dethe criminal justice
– all of whom are stakeholders in public
fense counsel need to understand the
safety and crime control.
factors that may result in an offender resystem, and to highlight
ceiving the benefit of a sentence alternaDefense Counsel
tive to incarceration.
the importance of
It is not as common to think of defense
In jurisdictions that have adopted decounsel exercising discretion as it is to
terminate sentencing with guidelines and
exercising that
think of judges, prosecutors, probation
mandatory minimums, prosecutors have
and parole officers, and correctional offieffective control over some sentences by
discretion wisely.
cers exercising discretion. Yet, there are
virtue of the charges they bring. The
at least two aspects of discretion in which
charging decisions in these jurisdictions
defense counsel should be trained. First,
may be especially important, both prosethey should know and understand the faccutors and defense counsel need to undertors most likely to influence the other criminal justice actors in
stand the factors that are likely to be considered as charging
making decisions in order to be able to offer evidence and to
decisions are made.
make arguments designed to assist clients in benefiting from
During the course of its hearings, the Commission heard
discretionary decisions. Second, they need to understand the
from a number of prosecutors who have developed innovative
options available to defendants in a variety of community sucommunity-based sanctioning programs, including community
pervision or diversion programs, and the various risks and bencourts in Oregon, therapeutic community-based treatment cenefits of each program in order to be able to offer sound legal
ters in Arkansas, and extended in-patient drug treatment in
advice to clients about which options are best for them.
New York.5 Many of the prosecutors who participated in the
It is probably true that defense counsel have less power
hearings have been leaders in the development of partnerships
than other criminal justice professionals to initiate actions, as
with defenders and courts and other justice stakeholders, partopposed to responding to the initiations of other actors. But,
nerships that have yielded impressive reductions in the number
it is vital for defense counsel to understand the extent of disof people returning to prison, or going there in the first place.
cretion employed by others, the standards governing the exerRobert Johnson, himself a long-time leader in his own district
cise of discretion, and the ways in which discretionary
and in the larger community of prosecutors, expressed concern
decisions can enable defense counsel to seek the best possible
that there is no forum in which prosecutors can share their exresult for their clients.
periences and learn about the variety of innovative crime preIt is equally important for defense counsel to understand
vention approaches being developed around the country –
the programs and policies underlying the programs that are
often under the auspices of the local prosecutor’s office.
avoidance of unwarranted disparities in sentencing. Guidelines may work to avoid such disparities, but training in the
exercise of discretion holds out some promise of also helping
to reduce unwarranted disparities.
47
considerations that go into exercise of that discretion, established standards, or even shared their experiences with other
boards that have the same responsibility.8
As a general matter, perhaps out of an abundance of caution, corrections and parole officials do not see their role as involving the exercise of discretion as much as they see it as
involving the enforcement of rules. It is important for them to
recognize that it involves both, and that the balance of rule
and discretion is an elusive and important one in the criminal
justice system. Whether or not they are aware if it, that balance is struck by them personally on an almost daily basis.
It is always less risky for a deciding official to opt for incarceration over release to the community. This was brought
home to the commissioners at its Chicago hearing, where Patricia Caruso, Director of the Michigan Department of Corrections, there to testify about her agency’s reentry programs, was
simultaneously dealing long-distance with the political fall-out
from a high profile murder committed by a parolee who had
apparently been mistakenly released. The decision to release a
prisoner always involves some “political” risk. Yet, the just exercise of discretion means that officials who seek to do justice
must be willing to accept the responsibility that accompanies
release decisions. The Commission was impressed by testimony from Arkansas and Maryland officials that their respective governors take their clemency responsibilities seriously
and have commuted sentences in appropriate cases.9
Corrections and parole officials should also be trained in
the factors that should be considered when discretionary decisions are made that can have profound implications not only
for an individual’s freedom, but also for the prospect of successful reentry. In order to assure that officials make informed decisions, jurisdictions should provide them with training on the
most accurate and current research and findings available as to
the effectiveness of the available range of criminal sanctions.
available to their clients. Most criminal defendants rely heavily upon the advice of their counsel in deciding whether to
plead guilty or go to trial, to opt for an alternative disposition
or to prefer the traditional adjudicatory approach to a criminal
case, or to enter a treatment program or simply serve a sentence. Defense counsel is called upon daily to exercise careful
judgment in considering the options available to a defendant
and the characteristics of that defendant. These judgments
are in the nature of discretionary recommendations, and they
require as much careful thought and assessment as the decision
of prosecutors in making charging decisions.
The Commission also heard from defense counsel that the
success or failure of prosecutorial diversion/community supervision programs may turn on the willingness of defense counsel to support the programs and recommend them to their
clients. The best prosecutorial programs are those in which
defense counsel, the courts and other criminal justice professional support. Some of the best programs are influenced by
suggestions of defense counsel as they persuade prosecutors
that programs can be improved in order to both increase the
likelihood of a defendant’s rehabilitation and decrease the
likelihood of recidivism.
Probation and Parole Officials, and Correctional Officials
The Commission also heard testimony about the extent to
which probation/parole and correctional officials exercise great
power over a criminal defendant’s freedom. Probation and parole officials are responsible for supervising probationers and
parolees who are given provisional freedom and whose liberty
may be limited or controlled by the supervising officials. Correctional officials make the myriad day-to-day decisions that
determine the conditions and often the duration of the courtimposed sentence. The parole board makes a discretionary decision to release an inmate under the indeterminate
sentencing model, and the parole officer responsible for supervising the offender after release (or the probation officer in the
case of a suspended sentence) has the power to recommend
whether the offender should return to prison in the case of
non-compliance with release conditions, or to give the offender another chance. The efforts of Jorge Montes, Chair of
the Illinois Prisoner Review Board, to change the culture of
the Board, described in the report on our recommendations on
parole supervision,6 strikingly illustrate how changing concepts
of what constitutes an effective sanction can influence the exercise of discretion on the part of paroling officials.
In jurisdictions that have adopted determinate sentencing
and abolished discretionary parole, executive clemency may
provide the only possibility of release before the expiration of
the sentence. In some jurisdictions parole boards are charged
with making clemency recommendations to the governor, as
in Illinois, Maryland and Arkansas, and in some jurisdictions
a separate clemency board has this function. In a handful of
states, including Connecticut, parole and clemency functions
co-exist in a single board, which is responsible for making the
clemency decision independent of the governor.7 Of all the
decisions made in the course of a criminal case, the decision
whether or not to pardon or commute a sentence is perhaps
the most obvious and formal exercise of discretion. Yet few
parole boards (or clemency boards) have articulated the
Training and Cross-functional Communication
The Commission believes that it would be particularly helpful if judges, prosecutors, defense counsel, probation/parole and
corrections officials, and others who exercise discretion could
share with one another their experiences in balancing respect
for and observance of rules with the discretionary power to
make exceptions to those rules. There is no reason why prosecutors should not share with judges the factors they consider in
making charging decisions, or why judges should not share
with prosecutors the factors they consider in imposing sentences. Both prosecutors and judges should understand the
factors considered by corrections and supervisory officials in
deciding when a person should be released and when returned
to prison. The standards governing the exercise of executive
clemency or other discretionary pardoning authority should
also be made clear to all actors in the system.
The sound exercise of discretion is likely to be improved if
the actors in the criminal justice system talk to each other
about what matters, how much it matters and why it matters.
Indeed, the sound exercise of discretion could also be promoted
if officials who exercise discretion would include defenders,
community representatives, mental health professionals and
drug counselors in their training programs. There is a danger
when prosecutors train only with prosecutors, judges only with
48
judges, etc. that preconceptions or misconceptions may be reinforced rather than challenged.
In the end, officials with discretion must decide how best to
exercise it. The goal should be, however, to provide them
with as much valid information and thoughtful guidance as
possible. As the Commission has previously recommended,10
criminal justice officials can benefit from a broader understanding of how they interact with others to accomplish the
common goals of justice and public safety.
prosecutors have access to the most up-to-date and relevant research.
See the APRI’s Major Program Areas at http://www.ndaaapri.org/apri/programs/index.html.
4. In July 2005, the National District Attorneys Association
adopted “Policy Positions on Prisoner Reentry Issues,” available at
http://www.ndaa-apri.org/pdf/policy_position_prisoner_reentry_july_
17_05.pdf. This document affirms prosecutors’ interest in offender
reentry as a public safety issue, and recommends that “prosecutors
should educate themselves regarding the reentry programs that are provided or being proposed in their local jails and state prisons in addition
to those reintegration plans that are being supervised by probation, parole, or their local community services board and be supportive of appropriate programs and plans.” It states that “America’s prosecutors
should, where practicable, be participants in addressing th[e] issue [of
offender reentry] in an effort to reduce recidivism and ensure the safety
of victims and the community.”
5. Many of these prosecutor-driven programs are described in other
sections of the Commission’s report. See particularly Report I on Alternatives to Incarceration and Conviction for Less Serious Offenders.
6. See Recommendation on Improvement in Probation and Parole
Supervision, supra.
7. Other states that follow this model are Alabama, Georgia, Idaho,
South Carolina, and Utah. See Margaret Colgate Love, Relief from the
Collateral Consequences of a Criminal Conviction: A State by State Resource Guide,(W.S. Hein, 2006), condensed at http://www.sentencingproject.org/rights-restoration.cfm.
8. The ABA has taken the position, in response to a recommendation of the Justice Kennedy Commission in 2003, that jurisdictions
should “establish standards governing applications for executive
clemency.” See Report No. 121C, Annual 2003.
9. See March 3 Hearing Notes, available at http://www.abanet.org/cecs.
10. See Recommendation on Alternatives to Incarceration and
Conviction for Less Serious Offenders, supra.
Respectfully submitted,
Stephen A. Saltzburg, Co-Chair
James R. Thompson, Co-Chair
February 2007
Endnotes
1. In Alaska, Rhode Island, and Delaware, the elected attorney general
is the chief prosecutor. In Connecticut and New Jersey, as in the federal
system, the chief prosecutor is appointed by the Governor. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Bulletin,
National Survey of Prosecutors in State Courts, 2001, May 2002, available
at http://www.ojp.usdoj.gov/bjs/pub/ascii/psc01.txt. There is no qualification (other than a license to practice law) for the office of district attorney.
2. ABA Standards for Criminal Justice Prosecution Function and
Defense Function (3rd Ed.), Standard 3-2.1 (Prosecution Authority to
be Vested in a Public Official), Standard 3-3.4 (Decision to Charge);
NDAA National Prosecution Standards ( 2nd Ed.), § 43.1 (Charges,
Prosecutorial Discretion), § 44.1 (Diversion, Prosecutorial Discretion).
3. Some of the innovative prevention programs initiated and administered by prosecutors are encouraged and funded by the United
States Department of Justice, and some are developed and funded locally. The American Prosecutors Research Institute (APRI), founded
by the National District Attorneys Association in 1984, tracks the development of these programs nationally, to ensure that state and local
49
amer ican bar asso ciation
Commission on Effective Criminal Sanctions
Certificates of Rehabilitation and Other Forms of
Relief from the Collateral Consequences
of Conviction: A Survey of State Laws
by Margaret Love and April Frazier
October 1, 2006
States, we still have a “national crazy-quilt of disqualifications
and restoration procedures.”2 While New York’s administrative certificate program is unique in its scope, a number of
other jurisdictions have relief mechanisms that are fairly effective in restoring criminal offenders to the legal rights and status they enjoyed prior to their conviction. The following brief
descriptions are intended introduce the reader to some of the
more functional aspects of our “national crazy-quilt.”
The statute books in every jurisdiction are filled with laws that
disqualify people with a criminal record from jobs, occupational
licenses, housing, and other benefits and opportunities. Some
restrictions on employment of convicted persons are narrowly
tailored to protect against an identified public safety risk, but
others are categorical, arbitrary, and without temporal limitation, without regard to any post-conviction rehabilitation.
Even where there is no legal basis for disqualification, and even
where jurisdictions have adopted a policy of encouraging reintegration of offenders, employers and others are still hesitant
about giving this population a second chance. Given the ease
of conducting background checks, it is harder and harder for
people who have been convicted of a crime to escape their past.
People who have served their sentences need to be able to
reestablish themselves as law-abiding members of society. At
the same time, employers and other decision-makers need to
have some reassurance of a person’s reliability. The ABA
Commission on Effective Criminal Sanctions has been looking
into the ways in which jurisdictions now relieve legal disabilities and certify an offender’s suitability for employment and
other appropriate opportunities, looking toward the development of a model administrative or judicial relief procedure.
Every jurisdiction in the United States has some legal
mechanism for mitigating or avoiding the collateral consequences of a felony conviction, and for certifying an ex-offender’s rehabilitation.1 Pardon is of course the “patriarch” of
relief procedures, but as a practical matter these days pardon is
a realistic option in only a handful of states. Judicial remedies
like expungement, sealing and set-aside are available in some
states, but are usually restricted to first-time offenders or misdemeanants. A surprisingly large number of states have laws
prohibiting denial of employment or licensure based solely
upon a previous felony conviction, but very few provide any
effective enforcement mechanism. Only one state, New York,
offers an administrative certificate that both relieves specific
disabilities and evidences rehabilitation for employment and
licensing purposes.
Some state relief mechanisms work better than others, and
no two are exactly alike. Ten years after the Justice Department issued its study of collateral consequences in the United
I. Administrative Certificates of
Rehabilitation
Six jurisdictions offer administrative “certificates of rehabilitation”3 that restore some or all of the legal rights and privileges
lost as a result of conviction, and in some cases evidence good
character. New York’s certificates have the most far-reaching
legal effect, but Illinois and Connecticut have recently enacted
certificate programs of their own to facilitate offender reentry.
The certificates offered by California, Nevada, and New Jersey
are not new, and appear to have little operational usefulness.4
New York: New York offers two types of certificates: a
certificate of “relief from disabilities” (“CRD”) and a
certificate of “good conduct” (“CGC”). See N.Y. Correct. Law §§ 700-705, 703-a, 703-b. These two certificates have more or less the same legal effect, and differ
primarily in their eligibility requirements. The CRD is
available to misdemeanants and first-time felony offenders, and may be awarded at any time after sentencing by a court where no prison term is involved, or after
release from confinement by the state Board of Parole.
The CGC is available from the Parole Board to repeat
offenders, and requires a waiting period of one to five
years of “good conduct,” depending on the seriousness
of the offense. The statutory criteria for the two certificates (“consistent with rehabilitation” and “public interest”) are otherwise the same. Both types of
certificate have more or less the same legal effect: they
relieve an eligible person of “any forfeiture or disability,” and “remove any barrier to . . . employment that is
automatically imposed by law by reason of conviction of
50
the crime or the offense.” In addition, the CRD and
CGC create a “presumption of rehabilitation” that must
be given effect by employers and licensing boards.5 Either certificate may be temporary or limited to particular disabilities, and the relief may be enlarged by the
court or Board of Parole at any time. Federal and outof-state offenders residing in New York may qualify for
relief from the Parole Board, if they can show they are
suffering from a particular disability under New York
law. The entire Parole Board process can take from six
months to a year to complete. Approximately 1000 applications are made to the Parole Board for both kinds
of certificates annually, of which about half are granted.
The bulk of the remaining grants (about 2500) are
made by the courts. A recent report of a New York
State Bar Association committee speculated that the
relatively low number of certificates issued each year
can be attributed by the fact that most offenders are not
told about them.6
California: California’s “certificate of rehabilitation” is
the first step in the pardon process, and has only a limited
independent legal effect. A person may apply to the court
in the county of residence after a seven-to-nine year “period of rehabilitation” after completion of sentence. The
statute requires that the person live an “honest and upright life”, “conduct himself with sobriety and industry”,
“exhibit a good moral character”, and “obey the laws of
the land.” CAL. PENAL CODE §4852.05. If the Court
finds that the petitioner has demonstrated rehabilitation,
it issues a certificate and forwards the case to the Governor (or Supreme Court in the case of recidivists) with a
recommendation that the individual be pardoned. The
certificate of rehabilitation is recognized as relevant in a
few licensing schemes,10 but only a gubernatorial pardon
can lifts occupational licensing bars. California pardons
have been very rare in the past decade, and Governor
Schwarzenegger has to date issued only three.
Nevada: The State Board of Pardons Commissioners (a
panel consisting of “the governor, justices of the supreme
court, and attorney general, or a major part of them.”)
has authority to issue a “certificate of good conduct” five
years after a person’s release from custody, pursuant to
Nev. Admin. Code § 213.130. Such a certificate may
issue: 1) to remove a particular legal disability incurred
through conviction; 2) to furnish evidence of good moral
character where it is required by law; or 3) “upon proof
of the person’s performance of outstanding public
services or if there is unusual and compelling evidence of
his rehabilitation.” See Op. Nev. Att’y Gen. (Nov. 18,
2003). However, the Board has not issued a certificate of
good conduct in many years, because certificates are considered effectively indistinguishable from a full pardon.11
Illinois: Illinois also offers certificates of relief from disabilities and certificates of good conduct, but its certificate program differs significantly from New York’s in its
eligibility criteria and legal effect. Eligibility for both certificates is restricted to persons with no more than two
non-violent felony convictions. More importantly, Illinois’ certificates do not have the general effect of relieving disabilities and removing employment barriers. The
Illinois CRD is narrowly tailored to facilitate licensing in
27 specified occupational areas, by creating a “presumption of rehabilitation” that must be considered by the licensing board. The CGC evidences a finding by the
Illinois Prisoner Review Board (PRB) that an individual
“has demonstrated that he or she has been a law-abiding
citizen and is fully rehabilitated,“ but it has no independent legal effect.7 The CRD is available as early as sentencing, while the CGC requires a waiting period of one
to three years depending upon the seriousness of the offense. Federal and out-of-state offenders are eligible for
either certificate as long as they reside in the state. The
Illinois certificate program is a new one, and few certificates have been granted to date. The PRB is in the
process of developing regulations for both certificates.
New Jersey: An individual who has been previously denied a license because of his conviction may apply seek
reconsideration after a two-year period with a certificate
of rehabilitation from the federal or state parole board, or
from the responsible chief probation officer, certifying
that he “has achieved a degree of rehabilitation indicated
that his engaging in the proposed employment would not
be incompatible with the welfare of society” Upon receipt of this certificate, the licensing authority “shall [be]
preclude[d] from disqualifying or discriminating against
the applicant.” N.J. STAT. ANN. §168A-3. No certificate has been sought or granted in the past 15 years.
Connecticut: The Connecticut Board of Pardons and
Parole has recently been given authority to supplement
its regular pardon program8 through issuance of “provisional pardons,” which will give relief from specific “barriers or forfeitures” relating to employment or licensing.
The only findings necessary are 1) that it “may promote
the public policy of rehabilitating ex-offenders through
employment” and 2) that it “is consistent with the public’s interest in public safety and the protection of property.” Employers may not deny or terminate
employment solely on the basis of a prior conviction for
which the person received a provisional pardon. Federal
and out-of-state offenders are eligible as long as they reside in the state. A provisional pardon does not appear to
have any effect of certifying an offender’s rehabilitation.9
In addition to the above-described certificate programs,
here are a variety of other ways to establish a convicted person’s rehabilitation and facilitate employment.
II. Pardon as Certification of Rehabilitation
Like Connecticut, Alabama, Georgia, Idaho, South
Carolina, and Utah all have independent administrative pardon boards, that operate independent of the
governor to relieve disabilities imposed under state and,
in certain cases, federal law. Georgia’s restoration of
51
public and private employment and for occupational licensing, and it appears to be the only state that provides for such
case-by-case certification.15 But the law in five states accords
an automatic statutory “presumption of rehabilitation” to individuals who have a clear record for a certain period of time.
However, only two of these five states provide a mechanism
for enforcement of their nondiscrimination provisions.16
Moreover, in most states there are many occupations that are
excepted from the nondiscrimination obligation, including
those in health, education and care-giving.
rights certificate (available immediately upon completion of sentence) restores the right to sit on a jury and
run for public office, although a full pardon (available
after an additional five-year waiting period) is necessary
to remove licensing and employment restrictions. The
Georgia Board of Pardons and Paroles issues between
400 and 500 full pardons each year, and about the same
number of “restoration of rights” certificates.12 South
Carolina’s board typically grants 60-70% of the 200-odd
cases it hears each year. The Alabama board granted
158 full pardons in 2003, and over 2,000 applications
for restoration of voting rights. In Idaho the grants are
fewer in absolute number (20-30 per year), but still represent 2/3 of all applications received. (Idaho also provides for a set-aside of conviction and dismissal of
charges for probationers upon successful completion of
sentence.) 13 In all of these states pardon relieves disabilities, but does not expunge the conviction.
Arkansas creates a presumption of rehabilitation for occupational licensing purposes five years after release or
the completion of parole or probation supervision if a
person has no subsequent convictions with an exception
for teacher and nursing licenses. The licensing authority
is required to state in writing the reasons for denial of the
license if the decision is based, in whole or part, on
conviction of a felony, and a person may file a complaint
under the state administrative procedure act in cases of
violations. ARK. CODE ANN. § 17-1-103.
Delaware, Pennsylvania, and Oklahoma administer
the governor’s pardon power through an appointed board
with gate-keeping authority (the governor cannot act
without their approval), and all three states have a functioning pardon program that issues over 100 pardon
grants annually. All three states subject an applicant a
formal hearing process, with input from prosecutor and
victims. Arkansas also has an operational pardon program administered through that state’s Parole Board,
though the Board’s recommendations are not binding on
the governor and there is no formal hearing. The current governor of Maryland (Robert Ehrlich) has issued a
substantial number of pardons, but the operation of the
power has not been institutionalized in that state. In all
of these states pardon relieves most legal disabilities imposed by law and signifies rehabilitation.
Minnesota bars public employers and licensing agencies
from disqualifying a person “solely or in part” based on
conviction unless 1) there is a “direct relationship” between occupation or license and conviction history,
measured by the purposes of the occupation’s regulation
and the relationship of the crime to the individual’s fitness to perform the duties of the position; and 2) individual has not shown “sufficient rehabilitation and
present fitness to perform” the duties of the public employment or licensed occupation. Minn. Stat § 364.03,
subd. 1. Rehabilitation may be established by a record of
law-abiding conduct for one year after release from confinement, or successful completion of probation or parole. § 364.03, subd. 2. Once a person establishes
“sufficient rehabilitation and fitness to perform the duties of the public employment sought or the occupation
for which the license is sought,” that person “shall not
be disqualified from the employment or occupation”
even if the conviction “directly relates to the public employment sought or to the occupation for which a license is sought.” Enforced through state administrative
procedure act.
Pardon Grounds for Expungement: Pardon is grounds
for judicial expungement in three of the states that have
an operational pardon process: Arkansas, Connecticut,
and Pennsylvania. In Maryland and Oklahoma pardon is
grounds for expungement only for non-violent first-offenders. Pardon is also grounds for expungement in Indiana, Massachusetts, Ohio, South Dakota, Texas, and
Washington, but very few pardons have been issued in
those states in recent years.
Montana: A person is entitled to a presumption of
rehabilitation for occupational licensing purposes once
he or she successfully completes probation or parole supervision without any subsequent criminal convictions.
Mont. Code Ann. §3 7-1-205.
III. Automatic Presumption of Rehabilitation
More than half the states have laws regulating the extent to
which public employers and/or licensing authorities may consider a felony conviction in connection with deciding
whether to hire or license, or whether to terminate employment.14 These laws generally provide that employment or a
license cannot be denied “solely because of” a conviction, but
only if the conviction is “directly related” (or “reasonably” or
“substantially” related) to the particular employment or profession. Most states give no guidance as to how to establish
this relationship, though a few states define it by reference to
an individual’s “rehabilitation.” As we have seen, New York
issues certificates that attest to an offender’s rehabilitation for
New Mexico: In application for public employment or
occupational license, a “presumption of sufficient rehabilitation” is recognized after a period of “three years
after final discharge or release from any term of imprisonment without any subsequent conviction” when the
criminal conviction does not directly relate to the particular employment, trade, business or profession. N.M.
STAT. ANN. § 28-2-4. Presumption does not apply to
52
Massachusetts: Mass. Gen. Laws Ann. ch,. 276, §
100A (sealing). A state felon may apply to court to have
his record sealed after 15 years, provided he has no subsequent conviction (misdemeanant 10 years). An applicant for employment whose record has been sealed may
deny the existence of the conviction and licensing authorities are prohibited from disqualifying the applicant
based on the record, though the conviction may still be
taken into account for law enforcement purposes. In addition, governor’s pardon accomplishes sealing of record.
Mass. Gen. Laws Ann. ch. 127, § 152.).
convictions that directly relate to the profession or to
persons seeking licensing or employment in education
and child-care facility licenses if they were convicted of
drug trafficking, sexual offenses, or child abuse.
North Dakota: A person may be denied license because
of a prior conviction only “if it is determined that such
person has not been sufficiently rehabilitated, or that the
offense has a direct bearing upon a person’s ability to
serve the public in the specific occupation, trade, or profession.” Completion of five years after final discharge
without subsequent conviction “shall be deemed prima
facie evidence of sufficient rehabilitation.” If conviction
is used “in whole or in part” as a basis for disqualification, it “shall be in writing and shall specifically state the
evidence presented and the reasons for disqualification.”
N.D. Cent. Code § 12.1-33-02.1.17
Nevada: Nev. Rev. Stat. § 179.245 (sealing). After an
eligibility waiting period that varies depending on the seriousness of the offense (seven to 15 years after the date
of conviction or release from actual custody, whichever is
later, three years for misdemeanors), a person may petition the court in which he was convicted to seal all
records related to the conviction. Nev. Rev. Stat. §
179.245(1)(a). If the court seals the records, “all proceedings recounted in the record are deemed never to
have occurred” (with exceptions related to law enforcement and subsequent offenses), and the person “may
properly answer accordingly to any inquiry concerning
the arrest, conviction, or acquittal and the events and
proceedings related to the arrest, conviction, or acquittal.” Nev. Rev. Stat. § 179.285.
IV. Judicial Expungement
In eight states the courts have primary responsibility for
administering the state’s certification scheme through statutory
expungement-type relief that is available to most adult felony
convictions. In Arizona, Kansas, Massachusetts, Nevada, New
Hampshire, Oregon, Utah, and Washington, judicial relief
from collateral legal disabilities is available for all but serious
and violent crimes and sex offenses. In every jurisdiction but
Arizona, a person whose conviction has been expunged or
sealed may deny its existence in response to most inquiries.
Most expungement schemes include an eligibility waiting period, which in several cases is quite lengthy (e.g., 15 years for
felonies in Massachusetts).
New Hampshire: Convictions for all but serious violent
crimes may be “annulled” following completion of the
sentence and waiting periods ranging from 1 to 10 years.
N.H. Rev. Stat. Ann. §§ 651:5(III) and (IV). Those
convicted of more than one offense may have a longer
waiting period. Upon entry of an order of annulment,
the person “shall be treated in all respects as if he had
never been arrested, convicted, or sentenced”, except
that, upon conviction of any later crime, the annulled
conviction may be taken into account for sentencing
purposes and may be counted toward habitual offender
status. N.H. Rev. Stat. Ann. § 651:5(X)(a).
Arizona: Arizona law permits all state offenders except
those convicted of serious violent offenses, to have their
convictions “set aside” or “vacated” by the sentencing
court, and the charges against them dismissed, upon successful completion of probation or sentence and discharge. Ariz. Rev. Stat. Ann. §§ 13-907(A). Convicted
persons are entitled to be informed of their “right” to a
set-aside at the time of discharge. Id. See also Ariz. R.
Crim. P. 29.1, requiring notice to probationers at time of
discharge of right to have conviction “vacated.” This relief restores all rights and generally releases the person
“from all penalties and disabilities resulting from the
conviction.” However, it does not relieve the offender
from having to report the conviction if asked.
Oregon: Adult felony offenders (except for violent, sex,
and traffic offenses) may apply to the sentencing court to
have conviction “set aside” three years after sentence
served. Must have no pending criminal proceedings,
and no conviction within 10 years. Misdemeanors have
a one-year waiting period. If conviction set aside offender may deny its existence. Or. Rev Stat. §
137.225(1) through (6).
Kansas: Kan. Stat. Ann. § 21-4619 (expungement).
Some serious offenses (murder, rape, sex offenses) are excluded from the procedure, and a waiting period is imposed of three to five years after discharge from
probation or parole, depending on the offense. After expungement, person shall be treated “as not having been
convicted,” and an order of expungment “erases” the
conviction, save that it may be brought up in subsequent
prosecutions and may be used in connection with licensing decisions. A person must be informed at each stage
of the criminal process about the possibility of obtaining
expungement. § 21-4619(g).
Utah: Expungement is available from sentencing court
for most offenses. Eligibility waiting period seven years
for felonies, three to five for misdemeanors. Longer (10
years) for alcohol- and drug-related offenses. Utah Code
Ann § 77-18-11(1), (11). Certain violent and sex offenders categorically ineligible. Recidivists must wait 20
years. § 77-18-12(3) amended by 2005 Utah Laws 2. If
eligible, expungement “shall issue” unless contrary to
public interest. Recipient may deny conviction, though
53
it may be used for various purposes, as in sentencing and
firearms prosecutions. §§ 77-18-13(3), 77-18-15(4), (7).
way for first-time felony offenders to regain their rights more quickly.
Governor Nelson Rockefeller’s Memorandum accompanying the legislation makes the intent clear: “This bill will reduce the automatic rejection and community isolation that often accompany conviction of
crimes and will thus contribute to the complete rehabilitation of
[felons] and their successful return to responsible lives in the community.” In 1976 both certificates were given additional legal effect (“presumption of rehabilitation”) under the broad nondiscrimination
provisions of N.Y. Correct. Law §§ 750-755, which prohibit denial of
employment or licensure based on conviction absent a public safety risk
or a “direct relationship” between the conviction and the employment
sought. It might be argued that there is little or no difference in legal
effect between the CRD and the CGC, although even first offenders
who have a CRD must obtain a CGC if they want to qualify for “public
office,” including such public employment as firefighter or correctional
officer. See § 701(1).
6. See “Reentry and Reintegration: The Road to Public Safety: Report
and Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings” at 99-106 (May 2006),
http://www.nysba.org/MSTemplate.cfm?Section=Report__Re-Entry_and_
Reintegration__The_Road_to_Public_Safety&Site=Special_
Committee_on_Collateral_Consequences_of_Criminal_Proceedings&
Template=/ContentManagement/HTMLDisplay.cfm&ContentID=74434.
7. The process for obtaining a CRD is described in 730 Ill. Comp.
Stat. 5/5-5.5-5 through 20, and its effect in the context of licensing decisions is set forth in 5/5-5-5(h). The process for obtaining at CGC is
described in 730 Ill. Comp. Stat. 5/5-5.5-25(a) through 30. In the bill
as originally introduced, the CGC would have “relieve[d] an eligible offender of any disability, or . . . remove[d] any bar to his or her employment.” However, this provision was rewritten in the House so that the
entire legal effect of the CGC is contained in the provision describing
criteria for its award (“he or she has been a law-abiding citizen and is
fully rehabilitated”).
8. The Connecticut Board of Pardons and Parole operates wholly independently of the governor, and issues about 200 full pardons each
year, acting favorably on about 25% of the applications it receives. A
person may apply for a full pardon five years after the completion of the
sentence; if successful, the record of conviction is “erased” and the person may deny ever having been convicted.
9. A provision similar to New York’s fair employment practices law,
which would have given the provisional pardon the effect of creating a
“presumption of rehabilitation,” was excised from the bill shortly before
its passage.
10. A certificate of rehabilitation is given independent legal effect
to avoid exemption from employment in a few specific professions. See,
e.g. Health & Saf. Code, § 1522, subd. (g)(1)(A)(ii)(licensed community care facilities); Cal. Admin. Code tit. 10, § 3723 (real estate
license); Newland v. Board of Governors (1977) 19 Cal.3d 705, 712-714
(teaching certificate).
11. In Nevada, a full and unconditional pardon removes all disabilities, including licensing barriers, but does not “erase” conviction or remove stigma of conviction.
12. Georgia also has a first offender expungement law, by which all
first offenders may be placed on probation or sentenced to confinement
without an adjudication of guilt. Upon successful completion of probation or sentence, they are “not considered to have a criminal conviction,” and “suffer no adverse effect upon [their] civil rights or liberties.”
13. The Utah board receives only about three to five requests for
pardon a year, and there have been only about 10 pardons issued in the
Washington: After discharge, after a specified period of
time (5 or 10 years) certain offenders may apply to have
sentence “vacated,” and may then deny having been
convicted. Wash Rev. Code §§ 9.94A.640, 9.95.240,
9.96.060 (vacation). Governor’s pardon also has effect
of vacating conviction, but very few are given. Wash.
Rev. Code. § 9.94A.030.
Michigan, New Jersey, Ohio, and Rhode Island make
some form of expungement or sealing available to some
or all first felony offenders upon completion of sentence,
including those sentenced to prison. Rhode Island’s expungement provisions are widely used, with 4,201 misdemeanors and 490 felonies expunged in 2004 alone.
Ohio’s sealing statute is also widely used, but applies only
to non-violent offenses that are not subject to a mandatory prison term.
Deferred Adjudication: A growing number of jurisdictions expunge or seal the entire record where an offender
successfully completes probation pursuant to a deferred
adjudication agreement, and the charges are dismissed or
the conviction set aside. Arkansas, Connecticut, Iowa,
Louisiana, Missouri, Nevada, South Dakota, Texas, and
Vermont all provide for expungement or sealing of the
entire record in deferred adjudication cases. Iowa, Mississippi, Montana, Oklahoma, and South Dakota make
this relief available only to first offenders.
Pardon Grounds for Expungement: See p. 6, supra.
Endnotes
1. This paper deals primarily with relief from the collateral consequences of a felony conviction, which tend to be more severe and less
tractable than the collateral consequences associated with misdemeanors and juvenile offenses, offenses in which adjudication has been
deferred, or with arrest records not resulting in conviction.
2. Office of the Pardon Attorney, U.S. Dep’t of Justice, “Civil Disabilities of Convicted Felons: A State-by-State Survey” 1 (1996).
3. The term “certificate of rehabilitation” is used in a generic sense
to describe an official recognition that a criminal offender deserves to
regain legal rights and status lost as a result of conviction, and has
demonstrated reliability and good character over a period of time.
4. Connecticut’s “certificate” is called a “provisional pardon”, and it
is included here because it is awarded by an appointed board and its effects are narrowly defined by statute. The state of Mississippi also offers a “certificate of rehabilitation,” but it appears intended exclusively
to restore firearm rights. See Miss. Code Ann. § 97-37-5 (1) and (3).
See also Op.Atty.Gen. No. 2005-0143, (April 1, 2005)(certificate does
not “remove” a conviction or allow a convicted felon to be qualified as
a candidate for public office.)
5. See N.Y. Correct. Law § 753(2); Arrocha v. Bd. Of Education, 712
N.E.2d 669 (1999). The “Certificate of Good Conduct” originated in
the 1940’s as a kind of administrative pardon given by the Parole Board
after a five-year waiting period. The certificate program was expanded
in the 1960’s to include a “Certificate of Relief from Disabilities” as a
54
16. In addition to New York, Wisconsin and Hawaii provide for
enforcement of their nondiscrimination provision through a fair
employment practices law. Massachusetts’ nondiscrimination law also
provides for FEP enforcement, but it extends only to misdemeanor offenses. A few other states (e.g., Arizona, Arkansas, Louisiana, Minnesota) authorize complaints to be brought under the state’s
administrative procedure act.
17. The “direct bearing” standard and “rehabilitation” tests of this
statute are incorporated into dozens of licensing statutes in the N.D.
Cent. Code, including: liquor licenses (§ 5-03-01.1); teachers (§ 15.113-25); residential treatment centers for children (§ 25-03.2-04); architects and landscape architects (§ 43-03-13); lawyers (§ 27-14-02);
barbers (§ 43-04-31.1); electricians (§ 43-09-09.1); funeral service director (§ 43-10-11.1);
past decade. The relative paucity of pardon applications and grants in
Utah can be explained by the general availability of expungement as an
alternative restoration mechanism for all but the most serious offenders.
In Utah, most felony offenders are entitled to judicial expungement
after a relatively short waiting period, unless the court finds that this
would be “contrary to the public interest.” The only people who need a
pardon to restore rights in Utah are those who have been convicted of
serious violent felonies.
14. See Margaret Colgate Love, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE-BY-STATE RESOURCE
GUIDE (2006). See also http://www.sentencingproject.org/rights-restoration.cfm.
15. Illinois’ certificates also carry a “presumption of rehabilitation,”
but only within the context of a limited number of licensing schemes.
55
Justice Kennedy Commission
Report to the House of Delegates
august 2004
Table of Contents
Introduction
A. Justice Kennedy’s Challenge ............................................................................................................................58
B. Accepting the Challenge ..................................................................................................................................60
C. Ten Basic Principles ..........................................................................................................................................60
I. Report to the House of Delegates on Punishment, Incarceration, and Sentencing
Recommendations ................................................................................................................................................62
Report ....................................................................................................................................................................62
A. Shifting Sentencing Models: From Rehabilitation to Retribution ..............................................................62
B. Punishment and Crime..................................................................................................................................64
II. Report to the House of Delegates on Racial and Ethnic Disparity
in the Criminal Justice System
Recommendations ................................................................................................................................................70
Report ....................................................................................................................................................................70
A. Introduction ..................................................................................................................................................70
B. Discrimination or Disproportionate Offending ............................................................................................71
C. The Complexity of Race Discrimination in the Criminal Justice System ..................................................72
D. The Impact of the War on Drugs ..................................................................................................................73
E. Racial Profiling ..............................................................................................................................................74
F. Prosecution and Race ....................................................................................................................................74
G. The Indigent Defense Crisis ........................................................................................................................74
H. The Impact of Sentencing Laws and Practices ............................................................................................74
I. A Case Study: Monroe County, Indiana ........................................................................................................76
J. Recommendations ..........................................................................................................................................76
III. Report to the House of Delegates on Clemency,
Sentence Reduction, and Restoration of Rights
Recommendations ................................................................................................................................................78
Report ....................................................................................................................................................................78
A Introduction ..................................................................................................................................................79
B. Background – The Changing Role of Pardon ..............................................................................................80
IV. Report to the House of Delegates on Prison Conditions and Prisoner Reentry
Recommendations ................................................................................................................................................84
Report ....................................................................................................................................................................84
amer ican bar asso ciation
Justice Kennedy Commission
Report to the House Delegates
INTRODUCTION
A. Justice Kennedy’s Challenge
. . . . We have a greater responsibility. As a profession, and
as a people, we should know what happens after the prisoner is taken away. To be sure the prisoner has violated
the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim,
and to deter future crimes. Still, the prisoner is a person;
still, he or she is part of the family of humankind. . . .
Supreme Court Justice Anthony M. Kennedy’s dramatic address
to the American Bar Association on August 9, 2003 at its annual meeting in San Francisco raised fundamental questions
about the fairness, wisdom and efficacy of criminal punishment
throughout the United States. Justice Kennedy recognized that
arrests, prosecutions and highly publicized trials often command public attention, but there is rarely much interest on the
part of the public, including its lawyers, after a person has been
convicted and sentenced. What happens to those who are
punished is a mystery to many. As he spoke about corrections
and punishment, Justice Kennedy anticipated that many of the
lawyers in the audience might not warm to his subject:
. . . . It is no defense if our current prison system is more the
product of neglect than of purpose. Out of sight, out of mind
is an unacceptable excuse for a prison system that incarcerates over two million human beings in the United States
It appears that it was not happenstance that Justice
Kennedy concluded that “the energies and diverse talents of
the entire Bar are needed to address this matter,” for the matter of which he spoke was corrections, imprisonment, and punishment writ large. His address raised fundamental questions
about American sentencing and correctional practices.
The subject of prisons and corrections may tempt some of
you to tune out. You may think, “Well, I am not a criminal lawyer. The prison system is not my problem. I might
tune in again when he gets to a different subject.” . . .
. . . . Even those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections. The
focus of the legal profession, perhaps even the obsessive
focus, has been on the process for determining guilt or
innocence. When someone has been judged guilty and
the appellate and collateral review process has ended,
the legal profession seems to lose all interest. When the
prisoner is taken way, our attention turns to the next
case. When the door is locked against the prisoner, we
do not think about what is behind it.
Justice Kennedy expressed a number of concerns.
(1) About the sheer number of people locked up in the
United States as compared to other civilized nations:
Were we to enter the hidden world of punishment, we
should be startled by what we see. Consider its remarkable scale. The nationwide inmate population today is
about 2.1 million people. In California, even as we
meet, this State alone keeps over 160,000 persons behind bars. In countries such as England, Italy, France
and Germany, the incarceration rate is about 1 in
1,000 persons. In the United States it is about 1 in
143.
The failure of the legal profession to pay sufficient attention
to corrections and prisons in Justice Kennedy’s view was an abdication of responsibility:
(2) About the disproportionate impact of incarceration
on minorities:
In my submission you have the duty to stay tuned in.
The subject is the concern and responsibility of every
member of our profession and of every citizen. This is
your justice system; these are your prisons. The Gospels’
promise of mitigation at judgment if one of your fellow
citizens can say, “I was in prison, and ye came unto me,”
does not contain an exemption for civil practitioners, or
transactional lawyers, or for any other citizen. And, as I
will suggest, the energies and diverse talents of the entire
Bar are needed to address this matter. . . .
We must confront another reality. Nationwide, more
than 40% of the prison population consists of AfricanAmerican inmates. About 10% of African-American
men in their mid-to-late 20s are behind bars. In some
cities more than 50% of young African-American men
are under the supervision of the criminal justice system.
(3) About the costs and length of incarceration:
58
of its moral force. Pardons have become infrequent. A
people confident in its laws and institutions should not
be ashamed of mercy. The greatest of poets reminds us
that mercy is “mightiest in the mightiest. It becomes
the throned monarch better than his crown.” I hope
more lawyers involved in the pardon process will say to
Chief Executives, “Mr. President,” or “Your Excellency,
the Governor, this young man has not served his full
sentence, but he has served long enough. Give him
what only you can give him. Give him another chance.
Give him a priceless gift. Give him liberty.”
While economic costs, defined in simple dollar
terms, are secondary to human costs, they do illustrate the scale of the criminal justice system. The
cost of housing, feeding and caring for the inmate
population in the United States is over 40 billion
dollars per year. In the State of California alone, the
cost of maintaining each inmate in the correctional
system is about $26,000 per year. And despite the
high expenditures in prison, there remain urgent,
unmet needs in the prison system. . . .
. . . When it costs so much more to incarcerate a prisoner than to educate a child, we should take special
care to ensure that we are not incarcerating too
many persons for too long.
(7) About the dehumanizing experience of prison and the
importance of rehabilitation as a punishment goal:
The debate over the goals of sentencing is a difficult one,
but we should not cease to conduct it. Prevention and
incapacitation are often legitimate goals. Some classes of
criminals commit scores of offenses before they are
caught, so one conviction may reflect years of criminal
activity. There are realistic limits to efforts at rehabilitation. We must try, however, to bridge the gap between
proper skepticism about rehabilitation on the one hand
and improper refusal to acknowledge that the more than
two million inmates in the United States are human beings whose minds and spirits we must try to reach. . . .
(4) About the federal sentencing guidelines and mandatory minimum sentences:
In the federal system the sentencing guidelines are
responsible in part for the increase in prison terms. In
my view the guidelines were, and are, necessary. Before they were in place, a wide disparity existed
among the sentences given by different judges, and
even among sentences given by a single judge. As my
colleague Justice Breyer has pointed out, however,
the compromise that led to the guidelines led also to
an increase in the length of prison terms. We should
revisit this compromise. The Federal Sentencing
Guidelines should be revised downward.
. . . . Professor [James] Whitman [Harsh Justice] concludes that the goal of the American corrections system is to degrade and demean the prisoner. That is a
grave and serious charge. A purpose to degrade or demean individuals is not acceptable in a society
founded on respect for the inalienable rights of the
people. No public official should echo the sentiments
of the Arizona sheriff who once said with great pride
that he “runs a very bad jail.”
By contrast to the guidelines, I can accept neither
the necessity nor the wisdom of federal mandatory
minimum sentences. In too many cases, mandatory
minimum sentences are unwise and unjust.
(5) About the importance of judicial discretion in
sentencing:
The bottom line, Justice Kennedy concluded, is that “[o]ur
resources are misspent, our punishments too severe, our sentences too long.” He requested that the American Bar Association turn its attention to these issues:
Under the federal mandatory minimum statutes a
sentence can be mitigated by a prosecutorial decision
not to charge certain counts. There is debate about
this, but in my view a transfer of sentencing discretion from a judge to an Assistant
I hope it is not presumptuous of me to suggest that the
American Bar Association should ask its President and
the President-elect to instruct the appropriate committees to study these matters, and to help start a new public
discussion about the prison system. It is the duty of the
American people to begin that discussion at once.
U. S. Attorney, often not much older than the defendant, is misguided. Often these attorneys try in good
faith to be fair in the exercise of discretion. The policy, nonetheless, gives the decision to an assistant
prosecutor not trained in the exercise of discretion
and takes discretion from the trial judge. The trial
judge is the one actor in the system most experienced
with exercising discretion in a transparent, open, and
reasoned way. Most of the sentencing discretion
should be with the judge, not the prosecutors.
President Dennis Archer committed himself to begin that
“new public discussion” and formed the Commission to which
Justice Kennedy subsequently agreed to lend his name. President Archer appointed Commission members from within the
American Bar Association, thereby assuring broad representation from its membership. Most of its members have substantial criminal justice experience. A few had little experience in
criminal justice but brought to their work the discerning eye
that good lawyers bring to new problems. Brief descriptions of
the members are found in an Appendix to this Report.
(6) About the atrophy of the pardon power:
The pardon process, of late, seems to have been drained
59
B. Accepting the Challenge
answer many of these questions, for they do not permit a single,
correct answer. Reasonable people can and do differ on the answers. Consider, for example, the purpose(s) of punishment.
Some people argue from a moral perspective that one who commits a crime simply deserves punishment, and that no further purpose need be identified. Other people would argue that
punishment serves instrumental goals; it deters, reforms, incapacitates, and restores. But, there is no agreement as to which instrumental goals are most important. In the end, we offer no grand
conclusions or pronouncements on the criminal justice issues that
have been debated by scholars, judges and lawyers for many years.
We have been able to identify some important, but hardly
new, principles that appear to command support from a wide
cross-section of the population of judges, legislators, prosecutors, defense counsel and scholars from whose testimony, discussion and writings we have benefited. These basic principles
undergird the recommendations that we make in the four resolutions that we present to the Houses of Delegates. The resolutions cover (1) punishment, incarceration and sentencing;
(2) racial discrimination and unjustified disparities; (3) commutation, elimination of collateral disabilities and restoration
of rights; and (4) prison conditions and offender reentry.
The challenge for the ABA Justice Kennedy Commission was to
begin the process of getting the organized bar focused on corrections and punishment, to make initial recommendations for improving public knowledge of and confidence in the sentencing
and correctional process, and to seek to make punishment more
effective in preventing crime and enabling offenders to reenter
society once they have paid the price for criminal activity.
We determined early on that we needed to gather as much information about current sentencing practices, correctional practices, pardon systems and reentry issues as possible. In November
2003, we held three days of hearings in Washington, D.C., and
explored a wide range of issues with the help of some of the nation’s leading experts. We held additional hearings in San Antonio, Texas, in February 2004, during the ABA Mid-Winter
Meeting. Our focus was on the Texas criminal justice system as
an illustration of how one state was dealing with the expense of
incarceration and many issues similar to those raised by Justice
Kennedy. In March, representatives of the Commission met
with the Chair of the Criminal Law Committee of the Judicial
Conference of the United States. In April, we held hearings in
Sacramento, California, explored issues faced by the state with
the largest prison population, and learned about reforms that
were being considered in that state. Commission representatives
engaged in a discussion at the Stanford Law School with the
Latino Law Students Association, which was especially interested in disparities in sentencing disfavoring minority offenders.
In May, Commission representatives interviewed Maryland officials responsible for the state criminal justice system concerning
reforms that have been adopted and are under consideration.
Throughout the year, we have followed to the greatest extent possible the activity that has occurred in so many states as
they consider ways of reducing the costs of their correctional
systems. Just keeping up with current recent developments affecting sentencing, prison populations, and prisoner reentry
has been a challenge.
All the while we have been aware that in some respects the
Kennedy Commission has been asked to reexamine the most
fundamental issues that arise in criminal justice debates and to
deal with problems that have been present for decades. The
questions that must be asked by anyone addressing the issues
raised by Justice Kennedy include, but are not limited to, these:
What is (or are) the purpose (or purposes) of punishment? How
much punishment is necessary for particular crimes? Does a policy of incarcerating a greater number of criminals lead to
greater reductions in crime? How do we know when sentences
are too long? What factors should mitigate or enhance punishment? How can we prevent unwarranted disparities in sentencing? How can we recognize legitimate differences among
offenders charged with similar offenses? Are minorities disproportionately represented in prison because of racial discrimination or insensitivity, conscious or unconscious, or because they
commit a disproportionate percentage of criminal acts? At what
point do racial disparities erode confidence among minorities
that the criminal justice system is fair? Should offenders get a
second chance? If so, what is the best way to provide that
chance? Should the pardon power be reinvigorated? Can collateral sanctions be eliminated without endangering the public?
The unsurprising conclusion that we reached is that we cannot
C. Ten Basic Principles
(1) There is no universally accepted view of what the goal or purpose of punishment is, but there is something of a growing consensus that (a) while incarceration is an appropriate
punishment for many crimes, it is not the only punishment option that should be available in a comprehensive sentencing
system; (b) when incarceration is imposed as all or part of a
sentence, society and offenders benefit when offenders are prepared to reenter society upon release from incarceration; (c)
while there is a place for harsh punishment in a sentencing system, there also is a place for rehabilitation of offenders; and (d)
community-based treatment alternatives to prison may be both
cost-effective and conducive to safer communities.
(2) It is possible to differentiate among crimes, rank them in
relative order of seriousness, and tailor sentences in order
to further public safety, economic efficiency, and the ends
of justice. Some crimes, but not all, involve egregious conduct. Some crimes, but not all, pose grave danger to the
community. Criminal codes in the United States have become enormously complex and cover an incredible array of
human conduct. Some crimes require no mens rea at all,
while others require specific intent. Some crimes have no
readily identifiable victims, while others have identifiable
victims who have lost lives, health and property.
(3) For offenders who commit the most serious criminal acts,
particularly acts of violence against others, lengthy terms
of incarceration are generally warranted to recognize the
magnitude of the antisocial act (or as retribution or “just
desserts”), incapacitate the offender for the safety of the
community, and send a deterrent signal to others.
(4) As the seriousness of crime and threat of harm diminishes,
the need for lengthy periods of incarceration also diminishes.
Indeed, in many instances society may conserve scarce
60
(8) As President Bush said in his 2004 State of the Union address
which proposed a $300 million prisoner re-entry
initiative,
1
“America is the land of the second chance.”* But, it is also a
nation in which too often the second chances are not good
chances. Compassionate release of offenders based upon circumstances arising after they have been sentenced is theoretically possible, but is rarely provided. It has a proper place in a
correctional system. There also is a place for forgiveness.
Those offenders who have served their sentences and have
demonstrated through years of law-abiding conduct that they
have earned forgiveness should receive greater consideration
than they now do in the pardon process. Pardons need not
only be for the innocent or wrongly convicted, but can be
used to recognize the former offender who has seized his or her
second chance and made it a success.
resources, provide greater rehabilitation, decrease the probability of recidivism and increase the likelihood of restitution if
it utilizes alternatives to incarceration like drug treatment. For
treatment type alternatives to work, a genuine program must
be established and sufficient resources must be devoted to it.
(5) Sentencing guidelines or other systems that guide sentencing
courts in sentencing can, as the ABA Standards for Criminal
Justice: Sentencing (3d ed. 1994) recognized, help to minimize unwarranted and unjustified disparities in punishment
among similarly situated offenders. However, any system that
guides the discretion of sentencing courts runs a risk of becoming too wooden unless it permits sentencing courts to
take into account individual characteristics of an offense or
offender that support an increase or decrease in the guideline
or presumptive sentence that might otherwise be imposed. A
combination of guidance and an ability to depart offers some
hope of a sentencing system in which like offenders are
treated alike, while differences among offenders are not overlooked. There is no need for mandatory minimum sentences
in a guided sentencing system. As long as there is transparency – i.e., judges explain an increase or decrease in an
otherwise applicable sentence – and review of such decisions,
the right balance between avoiding unwarranted disparities
while recognizing individual characteristics of offenses and
offenders can be maintained, and judges can be held accountable for their decisions. This balance can be aided if there is
an entity provided with sufficient resources and charged with
monitoring the sentencing system, providing public reports
on its operation, and recommending changes in light of
crime rates, observed sentencing patterns, racial disparity in
sentencing and the availability of sentencing alternatives.
Guided discretion may also be useful when probation and parole revocation decisions are made.
(9) Given the history of race in America – e.g., slavery, Jim
Crow laws, segregation, Japanese internment, urban ghettos
– there is reason for concern when two-thirds of those incarcerated are African-American or Latino. Even though
offenders of color may commit a disproportionate percentage of certain types of criminal acts as the result of socioeconomic disadvantage and the many other complex causes
of crime, there is also evidence of discriminatory treatment
of defendants and victims of color at various stages of the
criminal process. Every jurisdiction should examine
whether conscious or unconscious bias or prejudice may affect investigatory, prosecution,
or sentencing decisions and
1
take steps to eliminate such bias. All participants in the
criminal justice system, including legislators, should strive
to eliminate the racial impact of their decisions.
(10) There is, as Justice Kennedy noted, a crying need for the
lawyers of America to involve themselves in the national
conversation about these issues. It is long past due for
lawyers to understand what happens to people after they are
arrested and are convicted and sentenced. There is much
that lawyers who understand might do to assist prisoners
serving long terms who have been largely forgotten, even if
that assistance is only to help them maintain connections
with the families and communities they left behind. There
is much they might do to assist offenders who have been released from prison to reintegrate into their communities,
and thereby increase the likelihood that they will not commit additional crimes. Lawyers who assist convicted offenders may not only help them, but they may simultaneously
decrease future crime rates and thereby reduce the number
of future victims throughout the United States.
(6) Offenders who serve substantial terms of imprisonment and
who will be released back into society often are unprepared for
their release. If offenders cannot successfully reenter their
communities, the chances increase that they will commit future criminal acts. Offenders who serve substantial terms of
imprisonment often do not possess the tools necessary to prepare themselves to reenter society. Successful reentry depends
upon education, training, and treatment while in prison, and
lawful means of supporting oneself in the community after release. Prison conditions should support education, training
and treatment of offenders. Inhumane and cruel conditions
decrease the likelihood that prisoners will be able to prepare
themselves for a successful return to the community.
Endnotes
(7) Collateral disabilities imposed upon convicted offenders
may make it difficult for them to resume their place in society. The most important predictive factor as to whether an
offender will become a recidivist appears to be employment.
Those who find work are less likely to re-offend. Those
who cannot find legitimate work are more likely to engage
in criminal acts. To the extent that legal and attitudinal
barriers to employing people with convictions can be removed, the chances of work increase and the likelihood of
recidivism decreases.
*President Bush announced: “This year, some 600,000 inmates will be
released from prison back into society. We know from long experience that
if they can’t find work, or a home, or help, they are much more likely to
commit more crimes and return to prison. So tonight, I propose a four-year,
300 million dollar Prisoner Re-Entry Initiative to expand job training and
placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. America
is the land of the second chance -and when the gates of the prison open, the
path ahead should lead to a better life.”
61
amer ican bar asso ciation
Justice Kennedy Commission
Report to the House Delegates
I. Report to the House of Delegates on Punishment,
Incarceration, and Sentencing
Recommendations
(5) Study and fund treatment alternatives to incarceration for offenders who may benefit from treatment
for substance abuse and mental illness.
(6) Adopt diversion or deferred adjudication programs
that, in appropriate cases, provide an offender with
an opportunity to avoid a criminal conviction.
(7) Develop graduated sanctions for probation and parole violations that provide for incarceration only
when a probation or parole violator has committed a
new crime or poses a danger to the community.
RESOLVED, That the American Bar Association urges states,
territories and the federal government to ensure that sentencing systems provide appropriate punishment without over-reliance on incarceration as a criminal sanction, based on the
following principles:
(1) Lengthy periods of incarceration should be reserved
for offenders who pose the greatest danger to the
community and who commit the most serious
offenses.
(2) Alternatives to incarceration should be provided
when offenders pose minimal risk to the community
and appear likely to benefit from rehabilitation efforts.
FURTHER RESOLVED, That the American Bar Association
recommends that the Congress:
(1) Repeal the 25 percent rule in 28 U.S.C. §994(b)(2)
to permit the United States Sentencing Commission
to revise, simplify and recalibrate the federal sentencing guidelines and consider state guideline systems
that have proven successful.
(2) Reinstate the abuse of discretion standard of appellate review of sentencing departures, in deference to
the district court’s knowledge of the offender and in
the interests of judicial economy.
(3) Minimize the statutory directives to the United
States Sentencing Commission to permit it to exercise its expertise independently.
(4) Repeal the limitation on the number of judges who may
serve on the United States Sentencing Commission.
FURTHER RESOLVED, That the American Bar Association
urges that states, territories and the federal government:
(1) Repeal mandatory minimum sentence statutes;
(2) Employ sentencing systems consistent with Blakely v.
Washington, 542 U.S. ___, 72 U.S.L.W. 4546 (June
24, 2004), that guide judicial discretion to avoid unwarranted and inequitable disparities in sentencing
among like offenses and offenders, but permit courts
to consider the unique characteristics of offenses and
offenders that may warrant an increase or decrease in
a sentence;
(3) Require a sentencing court to state on the record reasons for increasing or decreasing a presumptive sentence, and permit appellate review of any sentence so
imposed.
(4) Assign responsibility for monitoring the sentencing
system to an entity or agency with sufficient authority and resources to:
(a) Recommend or adopt alternatives to incarceration
that have proven successful in other jurisdictions;
and
(b) Gather and analyze data as to criminal activity
and sentencing and the financial impact of proposed legislation, and consider whether changes
in sentencing practices should be recommended or
adopted in light of increases or decreases in crime
rates, changes in sentencing patterns, racial disparities in sentencing, correctional resources, and
availability of sentencing alternatives.
Report
A. Shifting Sentencing Models: From Rehabilitation
to Retribution
For most of the twentieth century prior to the Sentencing Reform Act of 1984 (the “SRA”)1 and sentencing reform measures enacted in many states, the rehabilitative2 or “medical”
model3 of sentencing prevailed in the federal (and state)
courts.4 The assumption upon which sentencing rested was
that, through a combination of deterrence motivated by the
unpleasant experience of incarceration, and personal renewal
spurred by counseling, drug treatment, job training and the
like, criminal deviance could be treated like any other disorder. The system recognized, albeit grudgingly, that some defendants were, in effect, “incurable” and thus could only be
quarantined through lengthy or life sentences, and that in a
62
It is curious to see how few standards existed in criminal
sentencing prior to the advent of guidelines and truth in
sentencing and to compare the discretion awarded judges
and juries with other aspects of American life. Suppose
that Congress provided in the Internal Revenue Code
that the Commissioner of the Internal Revenue Service
(IRS) should assess income tax as he or she sees fit. In
other words, the Commissioner should make the tax fit
the individual taxpayer. Would anyone doubt that such a
system would be deemed unconstitutional—either as a
denial of equal protection (failing the rational basis test),
a denial of due process (also failing a rational basis test
and suggesting total arbitrariness and capriciousness), or
even as an invalid delegation of power.
few cases the crime was so egregious that the public demand
for retribution outweighed rehabilitative considerations.5 But
the dominant paradigm was rehabilitative. Therefore, sentences were supposed to be “individualized,” in the way that
medical treatment is individualized, according to the symptoms and pathology of the offender.6
Before the advent of guideline systems of sentencing, state
and federal sentences were described as “indeterminate,” a
word often used to refer to two different, but related, ideas in
the sentencing context. First, an indeterminate sentencing system is one in which the judge sentences a defendant either to
a specified term, or to a range of years (e.g., 520), but the number of years the defendant actually serves is determined later by
an administrative body like a parole board.7 For most of the
twentieth century, state and federal sentencing was indeterminate in this sense and still is in many states for some or all
crimes.8 For example, a federal judge would sentence a federal
defendant to a specific term of years, but the proportion of the
announced term that the defendant would actually spend in a
cell was controlled primarily by the United States Parole Commission.9 The Parole Commission, an executive branch agency,
not only created its own guidelines for determining release
dates,10 but retained discretionary power to set individual release dates anywhere within the broad parameters dictated by
those guidelines.11
Second, federal sentencing before the Guidelines was said
to be “indeterminate” in the sense that the judge had virtually
unlimited discretion to sentence a convicted defendant anywhere within the range created by the statutory maximum and
minimum penalties for the offense or offenses of conviction.12
As long as the judge kept within the statutory range, there
were virtually no rules about how he or she made the choice of
sentence.13 There was no limitation on either the type or quality of information a judge could consider at sentencing.14
Moreover, none of this information was subject to filtering by
the rules of evidence,15 and the judge was required to make no
findings of fact. Moreover, so long as the final sentence was
within statutory limits, it was essentially unreviewable by a
court of appeals.16
The pre-Guidelines federal sentencing system was indeterminate in both senses of the word because its objectives were
primarily (though never exclusively) rehabilitative. At the
time of sentencing, the system assumed that judges expert in
the law and the social sciences, and seasoned by the experience of sentencing many offenders, would choose penalties
that maximized the rehabilitative chances of offenders.17 After
sentencing, the assumption was that trained penologists could
determine when a prisoner had been rehabilitated18 and thus
advise the Parole Commission about release dates.19
The rehabilitative model was not necessarily favorable to
defendants, and it was not necessarily fair. Two defendants
committing the same crime under the same circumstances
could receive very different sentences depending on a particular judge’s or jury’s sentencing idiosyncrasies. A parole board
could prevent some harshness, but could not assure that a defendant did not serve a much longer term than most similar offenders. The unguided nature of the system, which still exists
in some states, is strange in American law, as one commentator has noted:
Take another example. Suppose that Congress authorized
the Social Security Administration (SSA) to make social
security payments to individuals as it deems wise. We
would have the same constitutional challenges, and I
think most legal observers would predict that they
clearly would succeed.
Stephen A. Saltzburg, “Due Process, History, and Apprendi v.
New Jersey,” 38 American Criminal Law Review 243, 245
(2001)(footnotes omitted).
In the 1970’s and 1980’s, the rehabilitative model of sentencing fell into disfavor in state and federal courts for a variety of reasons,20 including rising crime,21 mounting evidence
that prisoners were not being rehabilitated,22 and increasing
concern that indeterminate sentencing produced unjust disparities among similarly situated offenders.23 A combination of
conservatives inclined toward tougher sentences and liberals
inclined toward checking sentencing disparity coalesced to
produce sentencing reform in the federal system and in many
states. The result was the determinate sentencing revolution,
which has been characterized by (a) limitations on front-end
judicial sentencing discretion through passage of mandatory
minimum sentences for certain offenses and sentencing guidelines that narrow the scope of unconstrained judicial sentencing discretion for all offenses, (b) elimination of or drastic
limitations on parole or other forms of administrative early release authority, thus requiring defendants to serve a larger proportion of their judicially imposed sentences, and (c) in most
places, increases in the statutory and/or guidelines penalties for
most serious crimes, particularly violent crimes involving
firearms and drug offenses.
The effect on sentencing decisions was enormous. Beginning in the late 1970s, the United States began to respond to
concerns about rising crime by implementing an array of policy
changes which, in the aggregate, produced a steady, dramatic,
and unprecedented increase in the population of the nation’s
prisons and jails. Between 1974 and 2002, the number of inmates in federal and state prisons rose from 216,00024 to
1,355,748,25 a more than five-fold increase. Between 1974 and
2001, the rate of imprisonment rose from 149 inmates to 628
inmates per 100,000 population, a more than four-fold increase.26 Jail populations have also increased markedly. Between 1985 and 2002, the number of persons held in local jails
63
more than doubled, from 256,61527 to 665,475.28 By mid-year
2002, the combined number of inmates in federal and state
prisons and jails exceeded two million.29
The average length of time spent in prison has also increased. Alan J. Beck of the Bureau of Justice Statistics described the increase in his April 16, 2004 Remarks to the
National Committee on Community Corrections. The average time served in prison was about five years between 1992
and 2001. Between 1980 and 1992, the average time served
was only 18 months.
These numbers are unprecedented in American history and
represent a marked departure from a long period of relative stability in imprisonment rates. During the 45year period leading
up to the 1970s, rates of imprisonment in the U.S. (excluding
jail populations) held roughly steady at about 110 per
100,000.30 Moreover, as Justice Kennedy noted in his address
to the Association, current rates of incarceration in the United
States are strikingly different than the practices of most of the
rest of the world, particularly in comparison with other developed countries. The United States now imprisons a higher
percentage of its residents than any other country, surpassing
Russia, South Africa, and the states of the former Soviet
Union.31 And the U.S. incarcerates its residents at a rate
roughly five to eight times higher than the countries of Western Europe, and twelve times higher than Japan.32
The costs of the American experiment in mass incarceration have been high. Between 1982 and 1999, direct expenditures by federal, state, and local governments on corrections
jumped from $9 billion to $49 billion, an increase of over
440%.33 During the same period, combined criminal justice expenditures (for police, judicial, and corrections activities) by
federal, state, county, and municipal governments rose from
$35.7 billion in 1982 to $146.5 billion in 1999.34 Moreover,
the costs of an aggressive program of incarceration extend beyond the direct dollar outlays of governments on functions easily identifiable as part of the criminal justice system.
Governments themselves incur a variety of collateral costs
when a defendant is sent to prison or jail, including increased
expenditures for the maintenance and health care of dependents of inmates, lost tax revenues from income that would
have been earned or expenditures that would have been made
by defendants left free in the community, etc.
Finally, and not least, the families and communities from
which inmates come suffer a wide variety of tangible and intangible harms from the absence of the inmate. These include
the emotional, economic, and developmental damage to the
children of incarcerated offenders,35 and the disenfranchisement and consequent political alienation of a significant portion of the young men in the minority communities in which
both crime and punishment are most frequent.36
Alan Beck’s Remarks, cited above, described the overall
impact of incarceration on the American population. Overall, more than three percent of American adults were incarcerated or under criminal justice supervision in 2002. The
likelihood of an American going to prison sometime in his or
her life more than tripled to 6.6 percent between 1974 and
2001. For an African American male born in 2004, the likelihood of being incarcerated sometime during his lifetime is
32.2 percent.
B. Punishment and Crime
It is unclear what effect increased incarceration has had on
crime rates. The homicide rate, which had held steady at five
or fewer per 100,000 throughout the 1950s and early 1960s,
began rising steeply in 1966 and had nearly doubled by 1974.37
Between 1974 and 1991, homicide rates fluctuated between a
low of 7.9 per 100,000 in 1984-85 and highs of 10.2 in 1980
and 9.8 in 1991.38 Property crime rose steadily throughout the
1960s and 1970s, peaking in around 1979-80, and thereafter
declining gradually.39 Violent crime increased steadily throughout the 1960’s and 1970’s, declined slightly in the early 1980’s,
but rose again in the latter half of the decade, peaking at alltime highs in the early 1990s.40 Similarly, the use of illegal
drugs became a common feature of the American scene for the
time in the 1960s,41 continued to increase until about 1985,42
and remains a significant social problem.
The decline in property crimes has been steady, and in recent years there has been a decline in violent crime, as well as a
dramatic drop in homicides and firearm-related violent offenses. Between 1991 and 2002, the number of homicides in
the United States fell from its all-time high of 24,700 to
15,517, and the rate of homicide per 100,000 population
dropped from 9.8 to 5.5.43 From 1994 to 2002, the absolute
number of firearm crimes dropped from 1,248,250 to 442,880, a
decline of 64.5%. In the same period, the rate of firearm crime
per 100,000 declined from 6.0 to 1.9, a decrease of 68.3%.44
Some conservative writers have concluded that increased
imprisonment has been the most important cause of the crime
drop. As Charles Murray of the American Enterprise Institute
wrote in 1997, “We figured out what to do with criminals. Innovations in policing helped, but the key insight was an old
one: Lock ‘em up.”45 Most academic criminologists have been
more skeptical, emphasizing that crime rates are affected by a
wide array of factors, including changing demographics (particularly the changing proportion of crime-prone young males in
the population), fluctuating economic conditions, changes in
the drug trade, the availability of firearms, and changes in law
enforcement practices.46 For example, Professor William Spelman studied violent crime and prison data between 1972 and
1997 and concluded that violent crime would have declined
when it did even if the prison buildup had never occurred, although the decline was 27% greater than it otherwise would
have been because of the prison buildup.47 But, Spelman also
concludes that the benefits of incarceration in terms of crimes
avoided drops off sharply after a certain point, and that the
marginal benefit to society of additional incarceration after
that point in terms of crimes avoided is very slight.48
Researchers are just beginning to explore the implications
of the dramatic growth in incarceration rates for crime rates,
for families and communities, for prison management, and for
politics.49 It is not even clear that the increased use of incarceration has enhanced public safety, although lawmakers for
twenty years have acted in reliance on the claimed crimepreventive effect of harsh and certain punishments. It is
hard to say for certain whether recidivism rates are rising or
falling at a particular moment in time, because of the different measurements used, and because numerous variables
(e.g., California’s extraordinarily high parole revocation rate)
can skew the figures – though the consensus among a number
64
of researchers is that recidivism is not rising.50 Psychological
research has concluded that the effects of a prison stint are
minimal, and that “prisoners cope surprisingly well despite an
initial period of disorientation and serious anxieties about family and friends.”51 This literature also concludes that prisoners
can readjust fairly quickly to life in the free community.
The Commission lacks the resources, time and expertise to
enter the fray and opine on the precise relationship between
incarceration and crime reduction. The existing data suggests
that increased incarceration did have a positive impact in reducing crime. The difficulty is in determining when the costs
of increased incarceration outweigh the benefits in terms of
crime reduction. Just as the data support a conclusion that the
movement toward determinate and stiffer sentences produced
a drop in crime, they also indicate that jurisdictions that incarcerate increasingly large percentages of their population are
not necessarily any more crime-free than other jurisdictions.
The Texas Criminal Justice Policy Council provided the
Commission with extensive data it compiled comparing incarceration and crime rates in several jurisdictions. During our
San Antonio hearings, judges, prosecutors and defense counsel
uniformly praised the accuracy and integrity of the Council’s
work (and bemoaned the fact that it was effectively abolished
when the Governor zeroed it out of the current budget). The
Council compared Texas with the nation as a whole and also
with other large states. Some of the numbers are instructive.
Between 1991 and 2001, there was a 51.6% increase in the national incarceration rate and a 29.5% reduction in the crime
rate. In Texas, the incarceration rate for the same period rose
139.4%, while the crime rate was reduced 34.1%. By increasing the incarceration rate by almost three times the national
average, Texas decreased the crime rate only slightly more
than the national average. California increased its incarceration rate by 42.5% during the 10-year period, and reduced its
crime rate by 42.4%. New York increased the incarceration
rate for the same period by 10.9% and reduced its crime rate by
53.2%. Thus, California and New York obtained greater reductions in the crime rate than Texas without increasing incarceration at the same pace as Texas. Pennsylvania increased its
incarceration rate for the period by 61.5%, while reducing the
crime rate by only 16.8%.52
There are various explanations for the various incarceration
increases and crime decreases, and the Commission cannot explain precisely why some states achieved greater success in reducing crime with less incarceration. The numbers do suggest,
however, that there may well be an overreliance on incarceration in some criminal justice systems, and there is reason to
doubt whether constantly increasing the use of incarceration is
cost effective. The Washington State Institute for Public Policy has done an analysis that supports these conclusions, at
least as to its own state.53 The Institute reports that
state had about two people per 1,000 behind DOC bars;
today the rate is over five people per 1,000. Diminishing
returns means that locking up the fifth person per 1,000
did not, on average, reduce as many crimes as did incarcerating the second, third, or fourth person per 1,000.54
Washington State is not alone in seeking to determine
whether the use and length of incarceration should be reduced.
In the past several years, there has been substantial activity in a
number of states to modify corrections and sentencing policy by
reducing sentence length or relying on alternatives to incarceration. Much, if not most, of this activity, originated because of
a concern about budget deficits, but there is clear evidence that
policy makers in many states believe that they are getting
“smarter” on sentencing, rather than relying on the notion that
getting “tougher” is always the best policy. In 2003 alone, at
least nine states applied prospective and retroactive increases to
existing early release credits to shorten time served by incarcerated offenders. Some increases were substantial.55
In New York, for example, where draconian drug laws are in
place, the state enacted two earned-release provisions. One
granted the highest-level drug offenders, who were previously
ineligible for any early release credit, twice the merit time
available to other inmates. The other created a “presumptive
release” system that allows those who have completed a correctional program to be released when eligible for parole without
review by the parole board.56 Five states reduced sentences for
nonviolent offenders in 2003, four states reduced or eliminated
mandatory minimum sentences, and in some states “there is an
emerging consensus that sentences for drug offenses, particularly low-level possession offenses, should be revisited, and
that treatment alternatives may not only be more cost effective but also more appropriate than prison.”57
**************
[Sections C through K of the original Report I have been omitted, on grounds that they are either duplicative of material elsewhere in this volume, or no longer relevant in light of changes
in federal sentencing laws. The full report of the Justice
Kennedy Commission can be found at www.abanet.org/cecs.]
**************
Respectfully submitted,
Stephen Saltzburg, Chairperson Justice Kennedy Commission
August 2004
Endnotes
1. Title II of the Comprehensive Crime Control Act of 1984, Pub.L.
98-473 (1984).
2. See generally, FRANCIS A. ALLEN, THE DECLINE OF THE
REHABILITATIVE IDEAL, passim (discussing the rise and fall of the
“rehabilitative ideal”).
3. Michigan purportedly was the first state to adopt a sentencing system based at least in part on a “medical model,” United States v. Scroggins, 880 F.2d 1204, 1207 n. 6 (11th Cir. 1989). See also PAMALA L.
GRISET, DETERMINATE SENTENCING: THE PROMISE AND
REALITY OF RETRIBUTIVE JUSTICE 11(1991) (discussing the “rise
The key to understanding the costs and benefits of prison
as a crime-control strategy is the economic concept of diminishing marginal returns. When applied to prison policy, this fundamental axiom of economics means that, as
Washington increased the incarceration rate significantly
in the last two decades, the ability of the additional
prison beds to reduce crime has declined. In 1980, the
65
sentence. (c) The court could fix a maximum term and specify that “the
prisoner may be released on parole at such time as the [Parole] Commission may determine.” 18 U.S.C. §4205(b)(2) (repealed 1984). When
the court imposed a minimum term under either 18 U.S.C. §4205(a), or
18 U.S.C. §4205(b)(1), the Parole Commission retained control over
when the defendant would be released after he served the minimum and
achieved parole eligibility. In the pre-guidelines period, “federal courts
normally sentenced adult offenders pursuant to” §4205(a). United States
v. Scroggins, 880 F.2d 1204, 1207 (11th Cir. 1989).
There was one other factor at work in determining the actual sentence length of federal prisoners, a statutory entitlement to so-called
“good time” credit of up to nearly one-third of the stated sentence. Before the enactment of the SRA, this entitlement was codified at 18
U.S.C. §4161 (repealed 1984).
10. The creation of parole guidelines was mandated by 18 U.S.C.
§4203(a)(1) (repealed 1984). For a discussion of the federal parole
guidelines and their operation, see GOTTFREDSON, WILKINS, AND
HOFFMAN, supra note 8, at 22-37. See also, Kate Stith and Steve Y.
Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 22829
(1993) (discussing the genesis of the parole guidelines).
11. The breadth of the Parole Commission’s discretion is indicated
by the language of the statute, 18 U.S.C. §4206(a) (repealed), describing its power of parole:
(a) If an eligible prisoner has substantially observed the rules of
the institution or institutions to which he has been confined,
and if the Commission, upon consideration of the nature and
circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of the
offense or promote disrespect for the law; and
(2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this
section, and pursuant to guidelines promulgated by the
Commission pursuant to section 4203(a)(1), such prisoner shall be released.
12. See David Fisher, Fifth Amendment -Prosecutorial Discretion Not
Absolute: Constitutional Limits on Decision Not to File Substantial Assistance Motions, 83 J. CRIM. LAW & CRIMINOLOGY 744, 745 (1993)
(“Prior to the passage of the Sentencing Reform Act, federal judges enjoyed extremely broad discretion in sentencing. A judge could impose
any sentence she thought proper as long as it did not exceed the statutory maximum.”); Stanley A. Weigel, The Sentencing Reform Act of
1984: A Practical Appraisal, 36 UCLA L. REV. 83, 89 (1988) (same).
13. For example, federal law prior to the enactment of the Sentencing Reform Act of 1984 provided that, as to “any offense not punishable by death or life imprisonment,” the court was free to suspend the
imposition of a sentence of incarceration and place the defendant on
probation, so long as the judge was “satisfied that the ends of justice
and the best interest of the public as well as the defendant will be
served thereby....” 18 U.S.C. §3651 (repealed 1984).
14. See 18 U.S.C. § 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence.” See also Williams v. New York, 337 U.S. 241, 249-50 (1949)(due
process allows the judge broad discretion as to the sources and types of
information relied upon at sentencing).
15. Federal Rule of Evidence 1101(d)(3) (Federal Rules of Evidence
of the rehabilitative juggernaut” between 1877-1970, and noting that
“[a] medical analogue was frequently invoked.”); and ALLEN, supra
note 2, at 35 (referring to the “medical model” of sentencing).
4. Professor Allen notes that “rehabilitation ... seen as the exclusive
justification of penal sanctions ... was very nearly the stance of some
exuberant American theorists in mid-twentieth century...” ALLEN,
supra note 2, at 3. See also, American Friends Service Committee,
STRUGGLE FOR JUSTICE 83 (1971) (“Despite [its] shortcomings
the treatment approach receives nearly unanimous support from those
working in the field of criminal justice, even the most progressive and
humanitarian.”).
5. For example, both the death penalty and life imprisonment were
imposed throughout the period when the rehabilitative ideal dominated American sentencing, yet no one would seriously have argued
that the purpose of either type of sentence was rehabilitation of the offender. See Adam Bedau, The Death Penalty in America: Yesterday and
Today, 95 DICK. L. REV. 759, 762-64 (1991) (describing widespread
use of death penalty in America throughout twentieth century for
crimes including murder, armed robbery, rape, and kidnapping). See
also, Dane Archer, Rosemary Gartner, and Marc Beittel, Homicide and
the Death Penalty: A Cross-National Test of a Deterrence Hypothesis, 74 J.
CRIM. L. & CRIMINOLOGY 991 (1983) (attributing use of death
penalty in part to disbelief in rehabilitation).
6. “Individualized sentencing” was embraced as the philosophy of
federal sentencing in Williams v. New York, 337 U.S. 241, 248 (1949)
(referring to “[t]oday’s philosophy of individualizing sentences”); and
Burns v. United States, 287 U.S. 216, 220 (1932) (“It is necessary to
individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which
would be possible only in the exercise of a broad discretion.”).
7. For a discussion of the historical development of parole in Europe
and the United States, see REID MONTGOMERY, JR. AND STEVEN
DILLINGHAM, PROBATION AND PAROLE IN PRACTICE 25-32
(1983); and TODD R. CLEAR AND GEORGE F. COLE, AMERICAN CORRECTIONS, 2d Ed., 396-99 (1990).
8. In 1910, Congress mandated that each federal prison have its
own parole board, constituted of the superintendent of prisons of the
Department of Justice, the warden and physician of each penitentiary.
Act of June 25, 1910, ch. 387, 36 Stat. 819. The parole board of each
prison had the discretionary power to release any prisoner who had
served one-third of his original stated sentence if the board was satisfied
that “there is a reasonable probability that [the prisoner] will live and
remain at liberty without violating the laws,” and that release “is not
incompatible with the welfare of society.” Id. at § 3. The United States
Board of Parole, which later became the United States Parole Commission, was created by Congress in 1930. DON M. GOTTFREDSON,
LESLIE T. WILKINS, AND PETER B. HOFFMAN, GUIDELINES
FOR PAROLE AND SENTENCING 2 (1978). The legal powers of
the Parole Commission as it existed immediately before the adoption of
the sentencing guidelines are set out at 18 U.S.C. §§ 4201 -4218 (repealed 1984). For a general study of the operation of parole decisionmaking, see GOTTFREDSON, WILKINS, AND HOFFMAN, supra.
9. The district court had three options when imposing a sentence of
imprisonment: (a) It could impose a sentence under 18 U.S.C.
§4205(a) (repealed 1984), in which case the defendant was obliged to
serve one-third of his sentence before becoming eligible for parole. (b)
Pursuant to 18 U.S.C. §4205(b)(1)(repealed 1984), the court could impose a maximum term of imprisonment, but reduce the minimum term
required before parole eligibility to less than one-third of the maximum
66
21. See Barbara S. Barrett, Sentencing Guidelines: Recommendations
for Sentencing Reform, 57 MO. L. REV. 1077, 1079 (noting that during
the 1970’s “the perception that crime rates were out of control led some
officials to demand surer and stiffer sanctions against criminals as a
means of preventing crime”).
22. See Steven S. Nemerson, Coercive Sentencing, 64 MINN. L. REV.
669, 685–86 (1980) (“In part, the massive professional and academic
disillusionment with the therapeutic model stems from the simple practical inability of the criminal justice system to reform serious offenders
effectively through incarceration.”); Andrew von Hirsch, Recent Trends
in American Criminal Sentencing, 42 MD. L. REV. 6, 11 (1983)(“[N]o serious researcher has been able to claim that rehabilitation routinely
could made to work for the bulk of the offenders coming before the
courts.”). See also Michael Vitiello, Reconsidering Rehabilitation, 65 Tul.
L. Rev. 1011 (1991) (urging that rehabilitation be revisited as a dominant rationale for criminal sanctions).
23. One of the first and most influential critics of pre-guidelines sentencing on the ground of unjustifiable sentence disparity was Judge
Marvin E. Frankel. He said of the indeterminate sentencing system in
the federal courts that “the almost wholly unchecked and sweeping
powers we give to judges in the fashioning of sentences are terrifying
and intolerable for a society that professes devotion to the rule of law.”
MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973); see also Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CINN. L.REV. 1 (1972). See also, PRESIDENT’S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 23
(Government Printing Office 1967) (finding sentencing disparity to be
pervasive); NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS 142
(Government Printing Office 1973) (same); Peter B. Hoffman and Barbara Stone-Meierhoefer, Application of Guidelines to Sentencing, 3 LAW
AND PSYCHOLOGY REVIEW 53, 53-56 (1977) (describing criticisms of then-extant sentencing practices on the ground of “unwarranted sentencing disparity”). Peter Hoffman later became the
principal draftsman of the Federal Sentencing Guidelines.
24. Bureau of Justice Statistics, Prevalence of Imprisonment in the
U.S. Population, 1974-2001, NCJ 197976, p. 1, tbl. 1 (August 2003)
(hereinafter “BJS, Prevalence”).
25. Bureau of Justice Statistics, Prison and Jail Inmates at Midyear
2002, NCJ 198877, p. 1 (April 2003) (hereinafter “BJS, Prison and Jail,
2002”).
26. BJS, Prevalence, supra note 24.
27. Bureau of Justice Statistics, Correctional Populations in the United
States, 1997, NCJ 177613, p. 21, tbl. 2.4 (Nov. 2000).
28. BJS, Prison and Jail, 2002, supra note 25, at 1.
29. Id., at 2, tbl. 1.
30. MARC MAUER, RACE TO INCARCERATE 16 (1999).
31. See Marc Mauer, Comparative International Rates of Incarceration: An Examination of Causes and Trends (June 20, 2003) (available
at http://www.sentencingproject.org/pdfs/pub9036.pdf).
32. Id.
33. Bureau of Justice Statistics, Direct Expenditures by Criminal Justice Function, 1982-99 (available as http://www.ojp.usdoj.gov/bjs/
glance/tables/exptyptab.htm).
34. Bureau of Justice Statistics, Direct Expenditures by Level of
Government, 1982-99 (available as http://www.ojp.usdoj.gov/bjs/
glance/tables/expgovtab.htm).
35. See generally MARC MAUER AND MEDA CHESNEY-LIND,
do not apply at sentencing). This rule was adopted in 1975 as part of
the original Federal Rules of Evidence, see Pub.L 93-595, §3, 88 Stat.
1949 (1975), and thus was in effect both before and after the creation
of the federal sentencing guidelines. See also Williams v. New York, 337
U.S. 241, 250-51 (1949) (due process does not require confrontation or
cross-examination in sentencing or passing on probation).
16. See Koon v. United States, 518 U.S. 81 (1996) (“Before the
Guidelines system, a federal criminal sentence within statutory limits
was, for all practical purposes, not reviewable on appeal.”); Dorszynski
v. United States, 418 U.S. 424, 431 (1974) (reiterating “the general
proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.”) See also, Solem v. Helm, 463 U.S. 277, 290, n. 16
(1983) (“[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.”) Although the appellate courts lacked the power to
review the substance, which is to say the length, of sentences imposed
by district courts, they retained some ability to review the process
through which sentences were determined. The outer limits of the district court’s discretion were set by concepts of due process. See, e.g.,
Townsend v. Burke, 334 U.S. 736 (1948) (holding that a sentence based
on erroneous factual information violated due process); and United
States v. Tucker, 404 U.S. 443 (1972)(vacating on due process grounds a
sentence that relied on prior uncounseled convictions); United States v.
Clements, 634 F.2d 183, 186 (5th Cir. 1981)(holding that court would
“not review the severity of a sentence imposed within statutory limits,
but will carefully scrutinize the judicial process by which the punishment was imposed”); Herron v. United States, 551 F.2d 62, 64 (5th Cir.
1977) (“The severity of a sentence imposed within statutory limits will
not be reviewed.”); United States v. Cavazos, 530 F.2d 4, 5 (5th Cir.
1976) (same); United States v. Espinoza, 481 F.2d 553, 558 (5th Cir.
1973) (“[The] discretion [of sentencing judges] is not, and has never
been absolute, and while the appellate courts have little if any power to
review substantively the length of sentences [citation omitted], it is our
duty to insure that rudimentary notions of fairness are observed in the
process at which the sentence is determined.”). See also, Stith and Koh,
supra note 10, at 226 (“For over two hundred years, there was virtually
no appellate review of the trial judge’s discretion.”); Fisher, supra note
12, at 745 (noting that before the SRA there was no appellate review
of sentencing decisions).
17. GRISET supra note 3, at 1 (discussing the premises of the “rehabilitative regime” and noting that it rested on the assumptions that
“case by case decisionmaking should be encouraged; that future behavior could be predicted; that criminal-justice practitioners possessed the
expertise required to make individualized sentencing decisions”).
18. “The indeterminate sentence ... is expressive of the rehabilitation ideal: A convict will be released from an institution, not at the end
of a fixed period, but when someone (a parole board, a sentencing
board) decides he is ‘ready’ to be released.” JAMES Q. WILSON,
THINKING ABOUT CRIME, 191 (1975).
19. For a discussion of how social scientists advising the Parole
Commission designed and tested statistical models in order to generate
predictions about the risk of recidivism for potential parolees, see GOTTFREDSON, WILKINS, AND HOFFMAN, supra note 8, at 41-67.
20. For a more complete discussion of the fall of the rehabilitative
model and the rise of the Federal Sentencing Guidelines, see Frank
O. Bowman, III, The Quality of Mercy Must Be Restrained, and Other Lessons In Learning to Love the Federal Sentencing Guidelines, 1996 WISC. L.
REV. 679, 686-689 (1996) (hereinafter “Bowman, Quality of Mercy”).
67
term trends (available at http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm).
44. Bureau of Justice Statistics, Nonfatal firearm-related violent
crimes, 1993-2002 (available at http://www.ojp.usdoj.gov/bjs/glance/tables/firearmnonfataltab.htm).
45. Charles Murray, The Ruthless Truth: Prison Works, The Times of
London (1997). In a similar vein, Prof. James Q. Wilson said in 1998
that, “Putting people in prison is the single most important thing we’ve
done to decrease crime.” The Crime Bust, U.S. News & World Report
(May 25, 1998).
46. See, e.g., Alfred Blumstein and Joel Wallman, eds, THE CRIME
DROP IN AMERICA (2000); Jenni Gainsborough and Marc Mauer,
DIMINISHING RETURNS: CRIME AND INCARCERATION IN
THE 1990S (September 2000).
47. William Spelman, The Limited Importance of Prison Expansion, in
Blumstein and Wallman, supra note 46, at 123.
48. In a later review of studies in the field, Professor Spelman concluded that a doubling of a state’s prison population produces a twentyto-forty percent reduction in crime rate. William Spelman, What Recent
Studies Do (and Don’t) Tell Us about Imprisonment and Crime, in CRIME
AND JUSTICE: A REVIEW OF RESEARCH, Vol. 27, ed. Michael
Tonry (Univ. of Chicago Press 2002) p. 422. See also FRANKLIN E.
ZIMRING & GORDON HAWKINS, THE SCALE OF IMPRISONMENT (1991).
49. See, e.g., Michael Tonry and Joan Petersilia, Prisons Vol. 26, at
1-5 (1999).
50. Testimony of James Austin, Director, Institute of Crime, Justice
and Corrections, George Washington University, Before the ABA Justice Kennedy Commission, Washington, D.C., November 2003.
51. See Alison Liebling, Prison Suicide and Prisoner Coping, in Tonry
& Petersilia, supra note 49, at 284, and authorities cited.
52. The Commission also examined year-by-year statistics compiled
by the Vera Institute of Justice regarding the violent crime rate and the
incarceration rate for virtually every state from 1971 through 2002.
53. The Institute’s mission is to carry out practical, non-partisan research—at legislative direction—on issues of importance to Washington
State. The Institute conducts research using its own policy analysts and
economists, specialists from universities, and consultants. Institute staff
work closely with legislators, legislative and state agency staff, and experts in the field to ensure that studies answer relevant policy questions.
54. Aos, The Criminal Justice System in Washington State: Incarceration Rates, Taxpayer Costs, Crime Rates and Prison Economics, http://
www.wsipp.wa.gov/rptfiles/SentReport2002.pdf (January 2003).
55. Vera Institute of Justice, Changing Fortunes or Changing Attitudes? Sentencing and Corrections Reforms in 2003, at 5 (March 2004).
56. Id.
57. Id. at 7.
INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT. See also Collateral Casualties: Children of Incarcerated Drug Offenders in New York, Human
Rights Watch Reports, Vol. 14, No. 3 (June 2002) (available at
http://www.hrw.org/reports/2002/usany/USA0602.pdf).
36. See the joint report of the Sentencing Project and Human
Rights Watch, Losing the Vote: The Impact of Felony Disenfranchisement
Laws in the United States (summary available at http://www.hrw.org/reports98/vote/). This report finds that an estimated 3.9 million Americans, or one in fifty adults, have currently or permanently lost the
ability to vote because of a felony conviction; that 1.4 million African
American men, or 13 percent of the black adult male population, are
disenfranchised, reflecting a rate of disenfranchisement that is seven
times the national average; that more than one-third (36 percent) of
the total disenfranchised population are black men; and that, given current rates of incarceration, three in ten of the next generation of black
men will be disenfranchised at some point in their lifetimes. In states
with the most restrictive voting laws, 40 percent of African American
men are likely to be permanently disenfranchised.
37. Bureau of Justice Statistics, Homicide Trends in the U.S.: Long
term trends (available at http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm) .
38. Id.
39. Bureau of Justice Statistics, National Crime Victimization Survey, Property Crime Trends, 1973-2002 (available at http://ojp.usdoj.
gov/bjs/glance/tables/proptrdtab.htm).
40. Bureau of Justice Statistics, National Crime Victimization Survey, Violent Crime Trends, 1973-2002 (available at
http://ojp.usdoj.gov/bjs/glance/tables/viortrdtab.htm) ; Bureau of Justice
Statistics, Four measures of serious violent crime (available at
http://ojp.usdoj.gov/bjs/glance/tables/4meastab.htm).
41. The 1960s saw quite startling increases in drug usage. For example, prior to that period, the use of marijuana was rare, becoming common only in the late 1960s. STEVEN B. DUKE & ALBERT C.
GROSS, AMERICA’S LONGEST WAR: RETHINKING OUR
TRAGIC CRUSADE AGAINST DRUGS 45 (1993). One source estimates that between 1965 and 1970, the number of active heroin addicts in the United States grew from about 68,000 to roughly 500,000.
DAVID J. BELLIS, HEROIN AND POLITICIANS: THE FAILURE
OF PUBLIC POLICY TO CONTROL ADDICTION IN AMERICA
(1981). For a summary discussion of the history of narcotics usage in
America from the 1800s through the 1960s, see Frank O. Bowman, III,
Playing “21” with Narcotics Enforcement: A Response to Professor Carrington, 52 WASH. & LEE L. REV. 937, 951-55 (1995).
42. Sourcebook of Criminal Justice Statistics 2000, p. 260, Table
3.91. Data drawn from U.S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services Administration, National
Household Survey on Drug Abuse.
43. Bureau of Justice Statistics, Homicide Trends in the U.S., Long
68
amer ican bar asso ciation
Justice Kennedy Commission
II. Report to the House of Delegates on Racial and
Ethnic Desparity in the Criminal Justice System
Recommendations
When Justice Anthony Kennedy spoke these words in his
address to the American Bar Association on August 9, 2003,
he identified an issue of enormous concern to many people
who have been involved in federal, state and territorial criminal justice systems, and to many citizens who have been
alarmed by the increasing number of African-American men
incarcerated in America’s jails and prisons. As striking as Justice Kennedy’s numbers were, he did not exaggerate the problem. Instead, he offered numbers that some observers believe
are at the low end of the estimates of the actual number of
African-American men who are incarcerated.
Others place the percentage of prisoners who are AfricanAmerican at close to 50%2 and even slightly higher.3 In 1995, a
study by the Sentencing Project found that almost one in
three black males between the ages of 20 and 29 were under
some form of criminal justice supervision – either in prison or
jail, or on probation or parole.4 A report released by the Bureau
of Justice Statistics found that a black male had a 1 in 3
chance of being imprisoned during his lifetime, compared to a
1 in 6 chance for a Latino male and a 1 in 17 chance for a
white male.5 Although there are not as many African-American women in prison as men, their numbers increased by an
alarming 204% between 1985 and 1995.
Disparities also exist for Latino men and women, although
to a lesser degree.6 In fact, the number of African-American
and Latino men, women and juveniles in prisons and jails and
at every stage of the criminal justice process is vastly disproportionate to their numbers in the overall population.
These racial disparities in the prison population are a relatively recent phenomenon in American history. In 1930, whites
were 77 percent of prison admissions, African Americans were 22
percent, and other racial and ethnic groups were only 1 percent.7
By 2000, the racial and ethnic makeup of American prisons was
virtually reversed, with African Americans and Latinos comprising 62.2 percent of the total federal and state prison population.8
Youth of color in the juvenile justice system face similar
disparities:
• African-American and Latino youth are treated more
severely than their similarly situated white counterparts.
• In 1997, white youth represented 71% of the youth arrested for crimes across the country but only 37% of
detained or committed juveniles.
• African-American youth were 48 times as likely as
RESOLVED, That the American Bar Association urges states,
territories and the federal government to strive to eliminate
actual and perceived racial and ethnic bias in the criminal justice system by enacting measures that would:
(1) Establish Criminal Justice Racial and Ethnic Task
Forces to:
(a) include individuals and entities who play important roles in the criminal justice process, and invite community participation from interested
groups such as advisory neighborhood commissions and local civil rights organizations; and
(b) design and conduct studies to determine the extent of racial and ethnic disparity in the various
stages of criminal investigation, prosecution, disposition and sentencing; make periodic public reports on the results of their studies; and make
specific recommendations intended to eliminate
racial and ethnic discrimination and unjustified
racial and ethnic disparities.
(2) Require law enforcement agencies to develop and implement policies and procedures to combat racial and
ethnic profiling, including education and training,
data collection and analysis and other “best practices”
that have been implemented throughout the country
through voluntary programs and legislation.
(3) Require legislatures to conduct racial and ethnic disparity impact analyses to evaluate the potential disparate effects on racial and ethnic groups of existing
statutes and proposed legislation; review the data
gathered and recommendations made by Criminal
Justice Racial and Ethnic Task Forces; and propose
legislative alternatives intended to eliminate predicted racial and ethnic disparity at each stage of the
criminal justice process.
Report
A. Introduction
Nationwide, more than 40% of the prison population consists
of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some
cities, more than 50% of young African-American men are
under the supervision of the criminal justice system.1
70
white youth to be sentenced to state juvenile facilities
for drug offenses. Latino youth were 13 times as likely.
• Among those not previously admitted to a secure facility,
African-American youth were six times as likely as white
youth to be incarcerated. When charged with a violent
offense, they were nine times as likely to be incarcerated.
• For youth charged with violent offenses, the average
length of incarceration was 193 days for whites, 254
days for African-American youth, and 305 days for
Latino youth.9
any of my neighbors got caught,” Carter said, adding that his
neighbors were black, “they would go to prison for 10, 12 years.”12
Understanding the causes of racial disparity in the criminal
justice system is key to its elimination, and the causes are varied,
complex, and many. Some scholars express the issue as a debate
over whether the disparity results from racial discrimination by
criminal justice officials such as police, prosecutors or judges or
from disproportionate offending.13 The Commission concluded
that a debate that pits claims of discrimination against allegations of over-offending over-simplifies the issues and holds little
promise of improvement. The questions that must be asked are
subtler, and the answers are more difficult to divine.
Some of the questions that must be asked are these: If there is
discrimination, is it intentional or the result of the racially disparate effects of race neutral decisions by police, prosecutors and
judges? If there is disproportionate offending, does it exist in all
categories of crimes or only a few, and what are the reasons for
the disproportionate offending when it does exist? If there are explanations for disproportionate offending, do they involve the realities of such factors as poverty, unemployment, poor education,
and poor physical and emotional health? If they do involve such
factors, are they distinct and unrelated to a history of racial discrimination in American society that spans centuries? If these
factors account in any considerable measure for disproportionate
offending, should these factors mitigate the sentences that are
imposed on those affected by these factors?
Available data support some theories about racial disparities in
prosecution and punishment. Criminologists have documented
the socio-economic causes of crime for decades. People who live
in poverty are more likely to engage in certain types of criminal
behavior, and the data suggests that we know why people living
in poverty commit certain kinds of crimes in their communities.
Since there are a disproportionate number of African-Americans
and Latinos living in poverty and suffering from various forms of
socio-economic disadvantage, it is not surprising that they engage in disproportionate offending in some crime categories.14
However, the existing research does not support a conclusion
that African-Americans and Latinos disproportionately offend
in all crime categories. It seems clear that there is proportionate
offending in certain crime categories, and there are discretionary
decisions made by criminal justice officials that contribute to
the racial disparity that exists in the criminal justice system.
When the Commission viewed the criminal justice system
as a whole – all crime categories and all communities – we
could only conclude that both disproportionate offending (and
the various causes thereof) and discretionary law enforcement
decisions contribute to racial disparities in our criminal justice
system. Thus, our view is that the debate between those who
claim discrimination (whether intentional or unintentional)
and those who allege over-offending as the cause of racial disparity not only oversimplifies the problem, but it sets forth a
false dichotomy. Both explanations account in part for the
racial disparities that are so apparent throughout the United
States, and it is impossible to identify with precision the extent to which each cause is responsible. 15 Similarly, we cannot
be certain as to the extent to which the various causes of disproportionate offending contribute to the racial disparities we
observe. Many causes may play a significant role, and all
Youth of color also are overrepresented among juveniles transferred from juvenile to adult criminal court. Reviewing data from
18 of the largest jurisdictions in the country, researchers from the
Pretrial Services Resource Center found that youth of color, particularly African-American youth, were over-represented and received disparate treatment at several stages of the process. 10
There is vast disagreement about the cause of racial disparities in the criminal justice system, but few dispute that the
problem exacts monumental social, financial, and human costs
U.S. Department of Justice, Bureau of Justice Statistics,
Race of Prisoners Admitted to State and Federal Institutions, 1926
– 1986, February 1994, p. 14, Table 7. on the individuals who
are incarcerated, their families, and society as a whole. That
Justice Kennedy noted the problem in a major address to the
largest organization of lawyers in the country speaks to its import. The ramifications of the disproportionate involvement
of African-Americans and Latinos in the criminal justice system extend to issues as broad and significant as disenfranchisement, disqualification from public housing and welfare
benefits, and the dissolution of families.11 The financial costs
to society are as predictable as the costs of building and maintaining prisons. When society incarcerates an individual it
not only punishes that person, but it deprives families of financial support. There are real costs imposed upon those who
are dependent upon the economic support of a father, mother,
or other family member who is incarcerated. The costs increase along with the length of the sentence.
This report will first address three issues that are fundamental to understanding the problem of racial disparity in the
criminal justice system: the scope and breadth of the underlying causes, the complexity of discrimination in the criminal
process, and the impact of the War on Drugs. It will then address racial profiling, prosecution practices, the indigent defense crisis, and sentencing laws, and the cumulative effect of
these issues. Finally, the report will discuss a model project implemented by a community that made a commitment to the
elimination of racial disparity in its criminal justice system.
The recommendations that we offer to the House of Delegates will not eliminate the problems of conscious and unconscious bias in our criminal justice system. Nor will they
eliminate racial disparity in prison populations. They are,
however, necessary steps toward reducing bias and racial disparity, and they signal a societal recognition that the problem
is real and requires constant monitoring.
B. Discrimination or Disproportionate Offending?
“All three of my boys smoked pot [growing up]. I knew it. But I
also knew if one was caught he would never go to prison. But if
71
their criminal acts, but also because of the discretionary decisions made at various stages of the criminal process.
It is not difficult to see how disparities may occur and how similarly situated individuals might be treated differently based on race
or ethnicity. For example, when a police officer decides to stop a
black driver who commits a traffic violation while ignoring the
white driver committing the same offense, the officer treats like individuals in disparate ways. Or, when the officer stops both drivers but
arrests the black driver while citing or warning the white driver, the
officer again treats like individuals in disparate ways. The end result
is disparity along racial grounds. In making his decisions, the officer
may be unaware of why he or she is reacting to individuals differently. One person’s manner or approach may suggest to the officer
that leniency is or is not appropriate, and the officer will gauge that
behavior based on his or her own experience. If the driver looks and
behaves like the officer, the officer naturally may be inclined toward
leniency; and, if the driver looks, dresses and behaves differently
from the officer, the officer may be inclined against leniency. The
officer making decisions may have no conscious idea that decisions
are affected by the interaction between officer and driver.
Similarly, when a prosecutor decides to offer a favorable plea
bargain to a white defendant but not to a black defendant
charged with the same offense and having the same criminal
record, there is a racially disparate result. The prosecutor, like the
police officer, may honestly and sincerely believe that one suspect is contrite while another is not because of the suspect’s manner and behavior. To the extent that the suspect looks and
behaves like the prosecutor, the prosecutor may tend toward leniency. To the extent that the suspect looks and behaves differently from the prosecutor, the prosecutor may be inclined against
leniency. The prosecutor may have no more conscious idea than
the officer in the previous example that a prosecutorial decision
may be affected by subconscious views about a particular suspect.
Prosecutors and judges, who have been to college and law
school, may tend to find defendants more attractive if they are
educated and well employed. When a prosecutor offers a plea
bargain to a white defendant that permits the defendant to
avoid jail time but fails to offer a similar deal to a black defendant with the same charge and criminal background, race is
rarely, if ever, a conscious consideration. The black defendant
may be less educated, might be more likely to be unemployed,
and may not have community supporters of the same stature as
the white defendant. The prosecutor may feel that the white defendant is more deserving of leniency, because the defendant has
better prospects, not because the defendant is white. Judges may
approve plea bargains favoring white defendants for the same
reasons prosecutors offer the bargains. The judges may not
know that a black defendant charged with the same crime and
having the same criminal record was not offered as good a deal.
Such decisions are made daily. They involve judgments
that are made on the basis of experience and intuition, and
that often are random and not based on any firm set of charging policies or procedures. The potential for unconscious views
to influence judgments about criminality is great. A white
criminal justice official —police officer, prosecutor or judge —
may empathize with a white, first-offender arrested with a
small quantity of drugs, viewing his involvement in the criminal justice system as a youthful mistake. The official may
think “there but for the Grace of God go I” while reflecting on
would need to be addressed to successfully resolve the problem.
Although we confess our uncertainty as to the exact contribution that various factors make to racial disparity, we do not lack
certainty as to what must be done. Our Commission believes
that, first, racial disparity must be recognized as a serious problem;
and, second, that problem must be addressed in a serious way. So
many of the numbers we offer at the beginning of this Report are
disturbing, but none is more so than the fact that a black male has
a 1 in 3 chance of being imprisoned during his lifetime. Whatever the causes, this cannot be permitted to continue.
We recognize that in many communities minorities are disproportionately victims of crime16 and may demand and benefit
from strong law enforcement. It is nonetheless true that there is
a perception among substantial numbers of minorities that the
criminal justice system is discriminatory, and the perception frequently is based upon reality. That perception itself may lead to
crime, disrespect for the law, and even a willingness to nullify or
subvert the law. Accordingly, we must recognize how racial disparities may undermine confidence in our criminal justice system and its ability to prevent crime. We must reduce these
disparities by identifying and reducing the factors that produce
disproportionate offending, and develop procedures and
processes designed to minimize conscious and unconscious bias
in the criminal justice system. As we go forward, we must also
remember that Justice Kennedy and President Archer asked this
Commission to begin a national conversation about this and
other issues, not to pretend that we can solve the racial disparity
problem in a single report or a single year.
With this caution in mind and with full appreciation that the
American Bar Association cannot single-handedly resolve the
deeply entrenched socio-economic issues that contribute to the
marginalization and criminal involvement of African-Americans
and Latinos, we conclude that society will not benefit if we pretend that racial disparity does not exist or that it cannot be reduced. We believe that it is important to encourage responsible
officials to identify racial disparities in the criminal process,
whether intentional or unintentional, that result in the dissimilar
treatment of similarly situated individuals. That racial disparities
(or what some observers would call racial discrimination) may
exist does not mean that most officials intentionally discriminate
against minorities. There is evidence that harsher treatment of
minorities as compared to similarly situated whites may result
from discretionary decision-making by criminal justice officials
who are often unaware of the racially disparate effects of their actions. Once these discretionary decisions are identified, law enforcement officials can develop policies and practices that serve
to reduce or eliminate unintentional discrimination.
C. The Complexity of Race Discrimination in the
Criminal Justice System
Although we cannot quantify the precise effect of discretionary
decisions on identifiable racial disparities, no seasoned observer
of the American criminal justice system can doubt that discretionary decisions are made at each stage of the process, from investigation, stops, and arrests to prosecution and sentencing.
Given the vast amount of discretion that exists and the numerous opportunities for its exercise, it is undeniable that many
African-American and Latino/a men, women, and juveniles in
our nation’s prisons and jails arrive there as a result not only of
72
cutor. A white defendant with resources to pay for drug treatment
in a residential facility, represented by private counsel with time
to devote to the defendant, might be offered a plea bargain that
would permit this outcome. In this example, socio-economic advantage (or disadvantage, depending on where the emphasis is
placed) may have more to do with the disparate outcomes than
race. Often, both race and class play a role in the decision-making process, and rarely in an intentional or even conscious way.
what are regarded as the prosecutor’s own youthful “indiscretions.” The same official may view a similarly- situated black
first-offender in a very different light based upon experience
with a greater number of similar defendants. These nebulous,
subconscious views, although not quantifiable, are very significant because they form the basis for important, discretionary
decisions that result in racial disparity.
Interactions between suspects or defendants, on the one
hand, and justice officials, on the other hand, occur at every
stage of the process. Police, prosecutors, judges, defense counsel, presentence officers, and others interact with suspects or
defendants throughout the criminal justice process. They also
interact with victims. The reaction to victims on the part of
criminal justice officials may also be affected by the similarity or
differences between the victims and the criminal justice officials. In short, opportunities to choose whether to be harsh or
lenient exist at every stage of the process, and discretionary decisions are made every step of the way. The cumulative effect
of discretionary decisions at each step of the process ultimately
contributes to the racial disparity in our prisons and jails.
There is little evidence that in 21st century America criminal
justice officials intentionally, or even consciously, base their discretionary decisions on race.17 Few police officers or prosecutors
consciously seek out African-Americans or Latinos to arrest or
prosecute. However, deep-seated views about criminality often
produce a self-fulfilling prophecy. The knowledge that the majority of drug offenders in prison are African-American produces
the misperception that African-Americans are more likely to be
drug offenders than whites. This misperception causes some police officers to be more suspicious of African-Americans than
whites, even when they engage in the same behavior.
The Commission concludes that unconscious biases or preferences undoubtedly create racial disparities. Although there is
no evidence of widespread intentional discrimination, we
would be naïve to deny that such discrimination might exist.
Given the size of our criminal justice systems, it is difficult to
believe that the racism that is found in other pockets of society
has completely escaped actors in the criminal justice system. It
might seem that intentional discrimination would be easier to
identify than unconscious or unintentional bias. However,
even when intentional discrimination is suspected, it is difficult
to prove; and, unless an aggrieved party is able to prove intentional discrimination, he or she has no constitutional legal remedy in the context of his criminal case.18 Civil lawsuits pose
similar legal hurdles that are almost impossible to overcome.19
The relationship between race (and ethnicity) and social class
adds to the difficulty of attributing racial explanations to official
decisions. It is frequently difficult to distinguish whether an individual experiences different treatment because of his socio-economic status or because of his race or ethnicity. There are a
disproportionate number of African-Americans and Latinos living in poverty,20 and the vast majority of criminal defendants are
indigent.21 Indigence affects not only the quality of counsel and
therefore the effectiveness of representation, but also the availability of community-based alternatives to incarceration.
For example, an overworked public defender with a heavy
caseload and without substantial resources might be unable to locate a drug program or other alternative to incarceration for an
African-American defendant that might be acceptable to a prose-
D. The Impact of the War on Drugs
No single policy has done more to contribute to the current racial
disparity in the criminal justice system than the War on Drugs.22
The number of drug arrests almost doubled between 1980 and
1990 – from 581,000 to 1,090,000 – and African-Americans constituted a disproportionate number of those arrested.23 Since the
data indicates that African-Americans are not more likely to use
or sell drugs than whites, the disproportionate number of arrests
suggests either that decisions about where to enforce the drug laws
have a discriminatory effect or that discriminatory policies and
practices, even if not intentional, are in place.
The Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services
(SAMHSA) reported that in 1999, African-Americans comprised 13 percent of monthly drug users, Hispanics, 11 percent,
and whites, 72 percent.24 However, in that same year, AfricanAmericans constituted 35 percent of drug arrests, 53 percent of
drug convictions, and 58 percent of those in prison for drug offenses.25 These statistics suggest that African-Americans are arrested, convicted, and imprisoned at a much higher rate than
their similarly situated white counterparts.
Data focusing specifically on drug distribution offenses is a bit
sketchier, but current research suggests that African-Americans
are arrested and incarcerated for selling drugs at much higher
rates than their white counterparts.26 The responses to
SAMHSA surveys indicated that African-Americans were more
likely than whites to report that it was easy to buy cocaine in
their neighborhoods. Given the segregated nature of housing patterns, these responses would suggest that these drugs were purchased from other African-Americans. However, a report
issued by the Wisconsin Policy Research Institute concluded that
drug dealing was prevalent in suburban white drug markets as
well as the inner-city black and Hispanic neighborhoods of Milwaukee.27 This report found that the inner-city drug sales tended
to take place on neighborhood street corners while the suburban
sales took place through contacts at work, in bars, and at athletic
and cultural events. Thus, suburban sales were likely to be conducted by whites and were more hidden from law enforcement
officers. A 1997 National Institute of Justice report supports the
Wisconsin study, finding that respondents were most likely to report buying drugs from someone of their own race or ethnicity.28
If African-Americans are not using or selling drugs more
than whites (either in overall numbers or proportionately), why
then do they constitute an overwhelmingly disproportionate
number of arrests and convictions for drug possession and distribution? Law enforcement practices and policies provide one answer. Because so many inner-city drug sales take place in public
spaces, these arrests are easier to conduct than the suburban
sales that frequently occur in private establishments. In addition, there is more demand for a law enforcement presence in
73
African Americans and Latinos as criminal defendants and as
victims of crime.34 As discussed in Section III above, these decisions, frequently at the charging and plea-bargaining stage of
the process, are rarely intentionally or even consciously based
on race. Nonetheless, race neutral decision-making often produces racial effects.
Prosecutors may legitimately consider a number of factors in
deciding whether to bring criminal charges. For example, a
prosecutor may consider the nature of the offense, the strength
of the evidence, the likelihood of conviction, the interest of
the victim in prosecution, the cost and complexity of the prosecution, and a number of other race neutral factors. Yet, her
evaluation of these factors may be laden with racial considerations. For example, a prosecutor is more likely to take a case
to trial when she is confident of securing a conviction. Thus,
she may be more likely to proceed to trial in a case involving
an African-American defendant and a white victim if the case
will be tried in a predominantly white community.
Legal challenges to racially discriminatory prosecutorial decisions are limited to claims of selective prosecution. The legal
standard for challenging selective prosecution based on race is
exceptionally high. Unless the defendant can prove that the
prosecutor engaged in intentional discrimination, he will not
prevail.35 Even strong statistical evidence fails to meet the
standard of proof.36 Since the discrimination at this stage is
most likely unintentional, there are no effective legal remedies.
the inner city where the sale of drugs on public streets often endangers the residents and destroys their neighborhoods. Racial
profiling, discussed below, is also a major factor that contributes
to racial disparity in drug arrests and convictions.
E. Racial Profiling
Under most circumstances, police officers are not legally permitted to use any show of force to stop an individual without
reasonable suspicion to believe they are engaged in criminal
activity.29 Likewise, they are not allowed to arrest or search an
individual without probable cause to believe that person has
committed a crime or is engaged in criminal activity.30 When
police officers consider race or ethnicity in the decision to
stop, search or arrest an individual, they engage in racial profiling, unless the individual’s race or ethnicity is part of description used to identify a suspect.
When police officers racially profile, they do so because
they believe that individuals of a particular race or ethnicity
are more likely to engage in criminal behavior than others. So
when a police officer decides that a young black man walking
through a predominantly white neighborhood and carrying a
television set is suspicious, he is engaging in racial profiling.
Likewise, a police officer engages in racial profiling when she
observes numerous cars speeding on the highway, but stops
only the car driven by a young black man.
Racial profiling is an ineffective law enforcement tool that
greatly contributes to the racial disparity in the criminal justice system and causes great harm to vast numbers of innocent
people. It is ineffective because when police officers rely on
race rather than behaviors that are indicative of criminal behavior, they are much more likely to stop and detain innocent
people. A 1999 New York study revealed that the use of racial
profiling made police officers less successful in catching criminals.31 Their “hit rate” – the percentage rate at which they
found drugs, guns, or criminals when they stopped and
searched people – was lower when they engaged in racial profiling. When they stopped and searched whites without using
racial cues, they were successful 20 percent more often than
when they searched blacks, using race as one of their cues.32
Racial profiling is also harmful because it results in the detention and harassment of countless innocent individuals.
When a police officer uses the pretext of a traffic violation to
stop an individual on the highway, the officer creates the opportunity to question the individual and request permission to
search. Most individuals consent to police requests to search
because they do not realize that they may decline. Such “consent searches” cause humiliation, embarrassment and delay for
which there is rarely legal recourse.33
Racial profiling also greatly contributes to racial disparities
throughout the criminal process. It brings a disproportionate
number of African-Americans into the system and overlooks
similarly situated whites that engage in the same criminal behavior. When there are more African-Americans and Latinos
brought into the front end of the process, there are more at
each successive stage and ultimately more in prison.
G. The Indigent Defense Crisis
Forty years ago, the Supreme Court guaranteed the right to
counsel to every individual facing the threat of incarceration,
regardless of ability to pay.37 That guarantee has yet to be fulfilled. The American Bar Association’s Standing Committee
on Legal Aid and Indigent Defendants (SCLAID) held four
public hearings in 2003 to determine whether the states are
fulfilling the constitutional requirement of providing effective
representation to persons charged with crimes. They heard
from public defenders across the country, and the results were
discouraging. In far too many jurisdictions, representation for
indigent defendants is either nonexistent or inadequate.38 The
effect of this crisis is particularly alarming in death penalty
cases, where effective representation has been proven to make
the difference between life and death.39
As with so many other issues in the criminal justice system,
the crisis in indigent defense has a disproportionate impact on
African-Americans and Latinos by virtue of their overrepresentation as criminal defendants.40 The indigent defense crisis exemplifies the intersection of race and class, and it is difficult to
discern which issue has the greatest effect on the outcome of a
criminal case. Even when race appears to be a factor in a criminal case – either at the pretrial or trial stage of the proceedings –
the criminal defendant with the resources to mount a strong and
effective defense will often achieve a more favorable result.41
H. The Impact of Sentencing Laws and Practices
Racial disparity in the criminal justice system is most frequently described in terms of the phenomenal number of
African-Americans and Latinos who disproportionately occupy the nation’s jails and prisons. Yet, the African-American
or Latino criminal defendant who receives a criminal sentence
F. Prosecution and Race
Through the exercise of prosecutorial discretion, prosecutors
make decisions that contribute to the disparate treatment of
74
has already experienced the cumulative effect of race or ethnicity at each previous stage of the process. The sentencing
stage perpetuates this unfortunate pattern.
Although there are no sentencing laws that explicitly target
African-Americans or Latinos, a number of sentencing laws and
policy changes during the 1980s exacerbated the racial disparity
in the prison population. Ironically, some of these changes were
implemented to achieve the opposite effect. The movement towards more determinate sentencing was pursued for the purpose
of decreasing or eliminating the judicial discretion that many
believed was the primary cause of vast sentencing disparities
that were frequently based on race or class. It was believed that
the reduction or elimination of judicial discretion would result
in similarly situated individuals receiving the same sentence.
Nothing could have been further from the truth.
What proponents of determinate sentencing did not fully
realize was that the elimination of judicial discretion at the
sentencing stage would not eliminate disparities as long as police and prosecutors continued to exercise discretion at the arrest, charging, and plea bargaining stages of the process. In
essence, the elimination of judicial discretion strengthened the
impact of the decisions made by these officials, especially the
prosecutor. Judicial discretion had operated as a check on the
unbridled, discretionary decisions of prosecutors, who were not
otherwise accountable for their decisions. With the removal
of judicial discretion and the introduction of sentencing guidelines and mandatory minimum laws, policy makers essentially
empowered prosecutors to predetermine the sentence through
their charging and plea bargaining decisions.
The shift toward determinate sentencing resulted in sentencing guidelines that either controlled or eliminated judicial
discretion. Many of the state guideline systems reduced judicial discretion but permitted departures under certain circumstances.42 However, the federal sentencing guidelines instituted
in 1987, as well as a variety of federal and state mandatory
minimum sentencing laws, totally eliminated judicial discretion while simultaneously inflating the discretion and power of
prosecutors. Since over 90 percent of criminal defendants
plead guilty to one or more charges,43 the charging and pleabargaining decisions determine the sentence in most cases
where judicial discretion has been eliminated.
The outcome of this shift in discretion should not be surprising. Racial disparities not only continued, but in many instance
increased drastically. A Federal Judicial Center report concluded that in 1990, African-Americans were 21 percent and
Latinos 28 percent more likely than whites to receive a mandatory prison term for offenses that fell under the mandatory sentencing laws.44 Interestingly, some of the state guideline systems
that reduced judicial discretion without eliminating it entirely
seem to have reduced racial disparity to a certain degree.45
In addition to the racial effects of race-neutral decisionmaking by prosecutors discussed in Section VI above, prosecutors exacerbate racial disparity through the types of offenses
they choose to prosecute. The vision of many of the proponents of sentencing guidelines was the elimination of more favorable sentences for white collar and other wealthy
defendants. But there is little evidence that either state or federal prosecutors pursue these types of crimes as zealously as
they do crimes typically committed by the poor.46
There are other sentencing laws that have had a harsher
impact on African-Americans and Latinos than on whites.
The federal cocaine laws are perhaps the single most notorious
example. These laws distinguish between the crack and powder form of this drug, punishing the possession and distribution
of the former much more harshly than the latter. The sale of 5
grams of crack results in the same mandatory five-year prison
term as the sale of 500 grams of the powder form of the drug.
African-Americans constitute the vast majority of individuals
charged with crack distribution in the federal system; the percentage was as high as 88 percent in 1992.47
As with other sentencing laws, the federal cocaine laws underscore the significance of the exercise of prosecutorial discretion. Almost all drug offenses may be charged either in state
or federal court. Since the federal sentencing laws are almost
always harsher than the state laws, this decision has great consequences for criminal defendants. The Los Angeles Times reported that between 1988 and 1994, not a single white person
in the Los Angeles area was prosecuted for crack cocaine distribution in federal court while hundreds of white offenders
were prosecuted in state court, receiving sentences as much as
eight years less than offenders prosecuted in federal court.48
Many of the African Americans prosecuted in federal court
were low-level dealers or accomplices.
Other sentencing laws that have a disparate effect on
African-Americans and Latinos are drug laws that impose an
enhanced criminal penalty when the offenses are committed
near certain types of facilities, such as schools or public housing
facilities. Although these laws do not explicitly target AfricanAmericans or Latinos, few white people live in public housing
projects or attend schools in urban areas. Thus, these laws treat
the residents of these areas differently from their similarly situated counterparts who live in other, more affluent areas.
The Connecticut enhanced penalty statute exemplifies this
problem. Any person who distributes, or possesses with intent
to distribute, a controlled substance in, on, or within 1,500
feet of a school, public housing project, or licensed day care facility is sentenced to three years of imprisonment, which may
not be suspended and must be served consecutively to the term
of imprisonment for the underlying drug offense.49 Because of
the necessary proximity of these facilities in densely populated
urban areas, the statute transforms the entire city of New
Haven into a targeted crime zone.50 The majority of New
Haven residents are African-American or Latino.51
Although the statute obviously applies to the entire state,
including the white suburban communities of Connecticut, it
will not have the same impact on those communities for a variety of reasons. First, studies have shown that suburban drug
sales are generally conducted at the workplace, in bars, and at
athletic and cultural events. Second, there are rarely public
housing projects in suburban communities. Finally, suburban
communities are not as densely occupied as urban areas.
One of the goals of enhancing the penalty for drug dealing
near schools or day care centers is to protect children. However, it may not be fair to punish a drug dealer in an urban area
more harshly than his similarly situated counterpart in the suburbs if he has no intent to sell near a school or day care center
but cannot avoid the enhancement because it applies to the
entire city. The statute permits the suburban drug dealer to
75
pleted its work and published the completed report in October
2003. It is beginning the process of implementing the report’s
recommendations.
avoid the enhancement if he sells to a school age child as soon
as the child walks outside of the 1,500 foot radius. However,
the urban drug dealer who sells the same amount of drugs to an
adult within 1,500 feet of a school when there are no children
in the area will receive an enhanced sentence.
J. Recommendations
The Justice Kennedy Commission recommends that all communities interested in eliminating racial and ethnic disparity in the
criminal process establish Criminal Justice Racial and Ethnic
Task Forces that include individuals and entities that play important roles in the criminal justice process, and interested groups
such as advisory neighborhood commissions and local civil rights
organizations. The Commission urges these task forces to 1) design and conduct studies to determine the extent of racial and
ethnic disparity in the various stages of criminal investigation,
prosecution, disposition and sentencing; 2) make periodic public
reports on the results of their studies; and 3) make specific recommendations intended to eliminate racial and ethnic discrimination and unjustified racial and ethnic disparities.
The Commission further recommends that states, territories, and the federal government require law enforcement
agencies to develop and implement policies and procedures to
combat racial and ethnic profiling, including education and
training, data collection and analysis and other “best practices”
that have been implemented throughout the country through
voluntary programs and legislation.
Finally, the Commission recommends that states, territories,
and the federal government conduct racial and ethnic disparity
impact analyses to evaluate the potential disparate effects on
racial and ethnic groups of existing statutes and proposed legislation; review the data gathered and recommendations made by
Criminal Justice Racial and Ethnic Task Forces; and propose legislative alternatives intended to eliminate predicted racial and
ethnic disparity at each stage of the criminal justice process.
I. A Case Study: Monroe County, Indiana
Our Report lays out the reasons why we believe that racial disparity in the criminal justice system is a complex and difficult
problem. There are multiple complicated causes, many of
which occur outside the criminal process. Within the criminal
justice system, the causes are cumulative at each stage of the
process and often result from the combined effects of discretionary decisions by criminal justice officials and criminal justice laws, policies, and practices that have a disproportionate
impact on African-Americans and Latinos. Thus, any effective
solution must involve officials and stakeholders at every stage
of the criminal process as well as policy makers, legislators, and
interested members of the community.
The Monroe County Racial Justice Task Force provides an
example of how the criminal justice officials in one community addressed racial disparity in their criminal justice system.
The Monroe County NAACP and the Unitarian Universalist
Church in Bloomington, Indiana, spearheaded this effort.
These organizations issued a preliminary report documenting
the racial disparity in the county’s criminal justice system and
calling for the creation of a task force to address the problem.
Participants in the task force included officials from the District Attorney’s Office, the Bloomington Police Department,
the Monroe County Deputy Sheriff’s Office, the Monroe
County Circuit Court, the local NAACP, and the Unitarian
Universalist Church. Graduate students from the Criminal
Justice Department of Indiana University provided research assistance and data collection.
The Monroe County Racial Justice Task Force sought technical assistance from The Sentencing Project, a nationally recognized non-profit organization that promotes alternatives to
incarceration and more effective and humane criminal justice
policies. The Sentencing Project provided the Task Force
with copies of Reducing Racial Disparity in the Criminal Justice
System: A Manual for Practitioners and Policymakers, which was
produced through the support of the Bureau of Justice Assistance of the United States Department of Justice. This manual provides a step-by-step research design to assist
communities in identifying and addressing racial disparity.
The Task Force conducted a comprehensive study of the
criminal justice system from arrest through sentencing, designed to determine whether there were racial disparities at
each stage, to establish the cause of these disparities, and to
recommend and implement concrete strategies, practices and
policy changes to eliminate them. This study was made possible because of the participation of key high-level officials with
the power and discretion to implement changes. Perhaps the
most significant factor in the success of the task force’s work
was the chief prosecutor’s willingness to provide access to internal prosecution data, enabling the Task Force to determine
whether there were racial differences in charging and plea-bargaining decisions. With the assistance of Marc Mauer and
Dennis Schrantz, authors of the manual, the Task Force com-
Respectfully submitted,
Stephen Saltzburg, Chairperson Justice Kennedy Commission
August 2004
Endnotes
1. August 9, 2003, Address to ABA House of Delegates.
2. Marc Mauer, Race to Incarcerate 124 (1999).
3. David Cole, No Equal Justice 4 (1999).
4. Marc Mauer and Tracy Huling, Young Black Americans and the
Criminal Justice System: Five Years Later, The Sentencing Project
(1995). A recently released report by the Sentencing Project reveals
that fifty years after the Supreme Court’s decision in Brown v. Board of
Education nine times as many African-Americans are in prison or jail as
in 1954 (884,500 versus 98,000).
5. Press Release, Bureau of Justice Statistics, Prevalence of Imprisonment in the U.S. Population, 1974-2001 (Aug. 17, 2003) available at
http://www.ojp.usdoj.gov/bjs/abstract/piusp01.htm.
6. Statistics for Latinos are difficult to obtain due to differences in
classification and other causes. For statistics showing the disproportionate representation of Hispanics at every step of the process in the federal
system, see Angela Arboleda, Latinos and the Federal Criminal Justice System, National Council of La Raza, Statistical Brief No. 1 (July 2002).
8. Human Rights Watch, World Report 2002, p. 4.
9. Testimony of Judge Ernestine Gray, Justice Kennedy Commission
Hearings, November 14, 2003, p. 3 (citing the Building Blocks for
76
29. Terry v. Ohio, 392 U.S. 1 (1968).
30. U. S. Constitution, Amendment IV.
31. Testimony of Professor David A. Harris, Justice Kennedy Commission, November 14, 2003, p. 4.
32. Id. For a detailed discussion on the ineffectiveness of racial profiling, see generally David A. Harris, Profiles In Injustice (2002).
33. For a discussion of a case in which an African American man
successfully sued the Maryland State Troopers for engaging in racial
profiling, see generally Angela J. Davis, Race, Cops and Traffic Stops, 51
U. Miami L. Rev. 425 (1997).
34. See generally Angela J. Davis, Prosecution and Race: The Power
and Privilege of Discretion, 67 Fordham L. Rev. 13 (1998); Larry Michael
Fehr, Racial and Ethnic Disparities in Prosecution and Sentencing: Empirical
Research of the Washington State Minority and Justice Commission, 32
Gonz. L. Rev. 57 (1997); Gary D. LaFree, The Effect of Sexual Stratification by Race on Official Reactions to Rape, 45 Am. Soc. Rev. 842 (1990);
Michael Radelet & Glenn L. Pierce, Race and Prosecutorial Discretion in
Homicide Cases, 19 L. & Soc’y Rev. 587 (1985); Cassia Spohn et al.,
The Impact of Ethnicity and Gender of Defendants on the Decision to Reject
or Dismiss Felony Charges, 25 Criminology 175 (1987).
35. See United States v. Armstrong, 517 U.S. 456 (1996).
36. Id., see also McCleskey v. Kemp, 481 U.S. 279 (1987).
37. Gideon v. Wainwright, 372 U.S. 335 (1964).
38. See http://www.abanet.org/legalservices/sclaid/defender/
projects.html for transcripts of SCLAID hearings.
39. See generally Stephen B. Bright, Counsel for the Poor: The Death
Sentence Not for the Worst Crime But For the Worst Lawyer, 103 Yale L. J.
1835 (1994).
40. David Cole, No Equal Justice 94 (1999).
41. The trial and acquittal of O.J. Simpson provides a compelling
example.
42. Mauer, Race to Incarcerate 136.
43. See Bureau of Statistics, Department of Justice, Felony
Defendants in Large Urban Counties 29 (1992).
Mauer, Race to Incarcerate 136 (citing Barbara S. Meierhoefer, The
General Effect of Mandatory Minimum Prison Terms (Washington, D.C.:
Federal Judicial Center, 1992), p. 20).
45. Michael Tonry, Sentencing Matters (New York: Oxford
University Press, 1995), p. 57.
46. Mauer, Race to Incarcerate 139.
47. Id at 155 (citing United States Sentencing Commission,
Cocaine and Federal Sentencing Policy (Washington, D.C.: United States
Sentencing Commission, February 1995), pp. 122-23).
48. Dan Weikel, “War on Crack Targets Minorities over Whites,”
Los Angeles Times, May 21, 1995. The United States Supreme Court
rejected a black defendant’s attempt to obtain discovery in support of
a motion to dismiss for selective prosecution filed to challenge these
prosecutions. See United States v. Armstrong, 517 U.S. 456 (1996).
49. C.G.S.A. § 21a-278a(b)
George Coppolo, Drug Sales Near Schools, Day Care Centers, and
Public Housing Projects, OLR Research Report, Connecticut General
Assembly, Office of Legislative Research, p. 3; Testimony of State Legislator Michael Lawlor, Justice Kennedy Commission Hearings, November 14, 2003.
51. In the year 2000, 57.5% of New Haven residents were black or
Hispanic (36.1% black and 21.4% Hispanic). http://research.yale.edu/
datainitiative/data.php?s=1&t=0&g=11&i=270_275&step=3&y%5B%
5D=16
Youth reports And Justice for Some: Differential Treatment of Minority
Youth in the Justice System and Donde Esta La Justicia? A Call To Action
on Behalf of Latino Youth in the U.S. Justice System).
10. Written testimony of Mark L. Soler, President, Youth Law Center, American Bar Association Justice Kennedy Hearings, November
14, 2003 (citing Jolanta Juszkiewicz, Youth Crime/Adult Time: Is Justice
Served? (Building Blocks for Youth, 2000).
11. See generally Invisible Punishment: The Collateral Consequences of Mass Imprisonment, Marc Mauer and Meda Chesney-Lind,
editors (2002).
12. Eric Rangus, “Carter lays down challenge for law,” Emory Report, October 20, 2003 (quoting former President Jimmy Carter).
13. See Katheryn K. Russell, The Color of Crime 26-46 (1998), for
an in-depth discussion of this debate.
14. African-Americans also are disproportionately victimized by
crime. Katheryn K. Russell, The Racial Hoax As Crime: The Law As Affirmation, 71 INLJ 593, 606 (1996).
15. But see generally Alfred Blumstein, Racial Disproportionality of
U.S. Prison Populations Revisited, 64 University of Colorado Law Review 743 (1993), concluding that, with the exception of drug offenses,
24 percent of the higher black rate of imprisonment may be caused by
racial bias or other factors. For drug offenses, Blumstein notes that
blacks are over-represented in prison by 43% as compared to their arrest rates. He concludes that drug arrest rates are not necessarily indicative of offending patterns but probably associated with the
over-arresting of blacks as compared to whites. Id. at. 751-754.
16. Supra note 15.
17. But see Vanita Gupta, Assistant Counsel, NAACP Legal Defense & Educational Fund, Inc., Written Submission to the American Bar
Association Justice Kennedy Commission (November 14, 2003, Washington, D.C.) for a discussion of the Tulia, Texas cases. These cases present
a startling modern-day example of intentional discrimination by a law
enforcement officer that caused tremendous harm to one AfricanAmerican community.
18. Whren v. United States, 517 U.S. 806 (1996); United States v.
Armstrong, 517 U.S. 456 (1996); Washington v. Davis, 426 U.S. 229
(1976); McCleskey v. Kemp, 481 U.S. 279 (1987); see Pamela S. Karlan,
Race, Rights, and Remedies in Criminal Adjudication, 96 Mich..L.Rev.
2001 (1998) for an in-depth discussion of this issue.
19. See Angela J. Davis, Prosecution and Race: The Power and
Privilege of Discretion, 67 Fordham L. Rev. 13, 40 (1998).
20. Id. at note 12; Scott L. Cummings, The Paradox of Community:
A View From the Prismatic Metropolis, 13-FALL JAHCDL 8, 12 (2003).
21. Francis D. Doucette, Non-Appointment of Counsel in Indigent
Criminal Cases: A Case Study, 31 New Eng. L. Rev. 495, 511 (1997).
22. Mauer, Race to Incarcerate 143 (1999).
23. Id (citing FBI data).
24. Drug Policy and the Criminal Justice System, The Sentencing
Project (2001) p, 4 (citing Substance Abuse and Mental Health Services Administration, Summary of Findings from the 1999 National
Household Survey on Drug Abuse, November 2000, pp 6-3 and 6-13).
25. Id. at 5 (citing SAMSHSA, FBI and BJS data).
26. In 1995, African Americans constituted 49 percent of all drug
distribution arrests. Mauer, Race to Incarcerate 149.
27. Id. at 150.
28. Id. (citing K. Jack Riley, Crack, Powder Cocaine, and Heroin:
Drug Purchase and Use Patterns in Six U.S. Cities, National Institute of
Justice, Dec. 1997, p. 1).
77
amer ican bar asso ciation
Justice Kennedy Commission
III. Report to the House of Delegates on Clemency,
Sentence Reduction, and Restoration of Rights
Recommendations
FURTHER RESOLVED, That the American Bar Association urges bar associations to establish programs to encourage
and train lawyers to assist prisoners in applying for pardon,
restoration of legal rights and privileges, relief from other collateral consequences, and reduction of sentence.
RESOLVED, That the American Bar Association urges states,
territories and the federal government to establish standards
and provide an accessible process by which prisoners may request a reduction of sentence in exceptional circumstances,
both medical and non-medical, arising after imposition of
sentence, including but not limited to old age, disability,
changes in the law, exigent family circumstances, heroic acts,
or extraordinary suffering; and to ensure that there are procedures in place to assist prisoners who are unable to advocate
for themselves.
Report
Justice Kennedy observed that the legal profession has an “obsessive focus” on the process for determining guilt or innocence, to the exclusion of what happens after a conviction has
become final and the prisoner is taken away. When a mandatory sentence has been imposed, the law may provide no
mechanism for a mid-course correction, years down the road
when the prisoner’s circumstances (or society’s values) may
have changed. To address this shortcoming in the legal system, Justice Kennedy asked the ABA “to consider a recommendation to reinvigorate the pardon process at the state and
federal levels.” Noting that the pardon process in recent years
seems to have been “drained of its moral force,” and that pardon grants have become “infrequent,” he remarked memorably
that “[a] people confident in its laws and institutions should
not be ashamed of mercy.”
Although Justice Kennedy’s comments about the pardon
power specifically addressed the situation of prisoners under
sentence – those who have not served their full sentence but
have served “long enough,” and who deserve “another
chance” – our Commission also considered the role that pardon plays in recognizing and rewarding rehabilitation for convicted persons who have served their time and successfully
reentered the community.
At first blush, Justice Kennedy’s suggestion that pardon
should play a role in revising and reducing prison sentences
seems to fly in the face of the fundamental tenets of current
determinate sentencing policies: i.e., long prison sentences
should be imposed on those who commit crime, and that
those sentences should be largely served in full. But, a close
examination of Justice Kennedy’s address indicates that he did
not call for a return to a system whereby individuals sentenced to a specific term of years might predictably expect to
be released early on parole. As we understand Justice
Kennedy’s message, it is that, wholly aside from the question
whether some system of parole should be employed in a given
jurisdiction, there is good reason to consider use of the pardon
FURTHER RESOLVED, That the American Bar Association
urges expanded use of the procedure for sentence reduction for
federal prisoners for “extraordinary and compelling reasons”
pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) and that:
(1) the Department of Justice ensure that full and fair
consideration is given to prisoner requests for sentence reduction, including the implementation of
procedures to assist prisoners who are unable to advocate for themselves; and
(2) the United States Sentencing Commission promulgate policy guidance for sentencing courts and the
Bureau of Prisons in considering petitions for sentence reduction, which will incorporate a broad
range of medical and non-medical circumstances.
FURTHER RESOLVED, That the American Bar Association
urges states, territories and the federal government to expand
the use of executive clemency and:
(1) establish standards governing applications for executive
clemency, including both commutation of sentence and
pardon; and
(2) specify the procedures that an individual must follow in
order to apply for clemency and ensure that they are
reasonably accessible to all persons.
FUTHER RESOLVED, That the American Bar Association urges states, territories and the federal government to establish an accessible process by which offenders who have
served their sentences may request pardon, restoration of legal
rights and privileges, including voting rights, and relief from
other collateral disabilities.
78
some not for its own sake, but because the legal system in
many jurisdictions offers no dependable alternative relief.3
power to provide a mechanism for early release in the same
kinds of compelling equitable circumstances that historically
have resulted in executive mercy.1
Although Justice Kennedy identified the chief executive’s
pardon power as a method of sentence reduction, the Commission concluded that there are other possible mechanisms for
reducing a prison sentence mid-term where equitable circumstances seem to warrant it. For example, the legislature could
authorize periodic administrative review of a prisoner’s situation, as is the case with military prisoners. Or, it could empower a court to consider prisoner petitions advancing
extraordinary and compelling reasons for sentence reduction,
as is the case in the federal system.2
Whatever the mechanism chosen, the fundamental question for the Commission was whether the criminal justice system in the United States would be improved if it included
some opportunity to re-examine sentences years after they are
imposed, not only for errors in their original imposition, but in
light of intervening developments in a prisoner’s situation. In
a word, should there be some readily available mechanism by
which a court or executive agency could review a prisoner’s situation, perhaps years after the sentence was imposed, to determine whether it warrants a gesture of forgiveness or mercy.
Our conclusion is that such a mechanism is desirable in a
comprehensive criminal justice system. In the movement toward “truth in sentencing” and the elimination of disparity,
American criminal justice has gravitated toward ever-longer
sentences. The practical absence of post-sentence review in
many jurisdictions presents a risk that, as Justice Kennedy
noted, some people will serve sentences that are too long and
be denied a second chance that would benefit both them and
the community. Justice Kennedy pointed out the number of
people incarcerated in the United States and how unusually
high a percentage it is when compared to the rest of the world,
and the Commission has provided some additional detail on
the growth of imprisonment in our Report and Recommendations Regarding Punishment, Incarceration and Sentencing.
Justice Kennedy’s concern about the need to breathe new
life into the pardon process is equally relevant in the context of
offender rehabilitation and reentry, since in many jurisdictions
pardon is the only way of regaining rights and privileges lost as
a collateral consequence of conviction. Offenders returning to
the community may be ineligible for many jobs and housing
and even welfare benefits by virtue of their conviction, and are
often subject to unreasonable discrimination. Offenders subject
to such continuing disabilities may understandably feel that
they can never discharge their full debt to society, a circumstance that hinders their successful reintegration into the free
community and may even lead them back to crime.
The Commission reviewed the state of pardoning in the
United States and found that in most jurisdictions the pardon
power is rarely utilized to reduce sentences or to promote reentry of individuals to the community. Although procedures are
in place in all jurisdictions for convicted persons to apply for
commutations and post-prison pardons, and although the pardon power appears to be administered efficiently in most jurisdictions, the end result is almost universally the same: i.e.,
with only a few exceptions the pardon process produces very
few grants. The atrophy of the clemency function is trouble-
A. Background—The Changing Role of Pardon
In Harsh Justice, Professor Whitman points out that throughout the 19th and well into the 20th century, pardon had a fully
operational role in the American justice system.4 At a time
when the legal system was relatively primitive, presidential
and gubernatorial pardons were issued generously to cut short
prison sentences and remit fines.5 Although the popular view
of pardon was that it was an antidemocratic power that could
easily be abused,6 in fact pardon operated efficiently and out of
public view “as part of the ordinary management of the
[prison] population.”7 In addition, pardon was the time-honored way that criminal offenders could regain their civil rights,
and be restored to their place in society.
By the mid-point of the 20th century, the development of
legal defenses such as duress and diminished capacity, the
availability of appellate review of sentences in some jurisdictions, and the institution of administrative relief in the form of
parole and probation in virtually all jurisdictions, made pardon
less necessary to the fair and efficient functioning of the penal
system. And, by the end of the 1970s, many states had enacted alternative judicial or administrative mechanisms for
restoring rights to offenders who had served their time.
The pardon power never became entirely obsolete, however. It was the only remedy in some cases of hardship and in
cases in which there were equitable grounds for relief that did
not entitle an offender to a specific remedy. Moreover, pardon
remained the primary means of restoring rights in many state
jurisdictions, and the only restoration mechanism available to
federal offenders.
By the end of the 20th century, clearly identifiable movements in both law and politics took their toll not only on the
pardon power, but also on the entire notion of taking a second
look at sentences. The most significant legal development was
the movement toward determinate sentencing based on a retributive model of justice. During his campaign for President in
1968, Richard Nixon declared his intent to declare war on
crime, which he did when he became President. That was has
been continually fought by every President since. The war on
crime had its own sub-war on drugs. The end result was abolition of parole and reduction in the use of probation in many
jurisdictions, and a dramatic decline in the number of pardons
granted in most jurisdictions.
It was not inevitable that the advent of determinate sentencing and the abolition of parole should be accompanied by
a diminished use of the pardon power. In theory, of course, the
pardon power could have become more important, because
without parole only use of the pardon power could provide a
safety valve to protect against excessive sentences.8 But, the reality was that in the atmosphere created by the war on crime
many legislators and executive branch officials were more concerned about being perceived as “soft” on crime, than they
were worried about sentences being inappropriately long in
particular cases.
Witnesses before the Commission made the point that
highly publicized crimes often accounted for strong executive
and legislative calls for increased punishment. Few voices of
79
continued to perform a useful role in mitigating sentences
only in jurisdictions that also have a healthy parole system,
with the two forms of early release often administered by the
same personnel.15
In sum, today the pardon power remains an important equitable remedy in theory, but, as a practical matter, it has become essentially unavailable to imprisoned offenders in almost
every American jurisdiction.
Pardon’s atrophy does not merely deny convicted persons
the opportunity to seek shorter sentences; it also makes it difficult or impossible to avoid the collateral consequences of conviction. Though some states have experimented with
administrative certificates of good conduct and judicial expungement or sealing, pardon still provides the most thorough
and respectable form of relief from legal disabilities. Pardon
also has a powerful symbolic value in restoring an offender’s
status in the community that even judicial restoration mechanisms do not share. As more and more people are convicted,
and as collateral penalties continue to grow in number and
severity, an increasing number of convicted individuals have a
genuine need for the time-honored “second chance” offered by
pardon. Yet, the realistic chance that the need will be met has
decreased dramatically in many jurisdictions. In the federal
system, although pardon is the only way to regain rights lost as
a result of conviction, it has become for all intents and purposes a dead letter.
The Commission is persuaded that pardon must remain an
essential component of any just system of punishment, particularly at a time when punishment appears harsh when judged
against historical standards, collateral disabilities arising from a
conviction are often disabling, and forgiveness is only possible
through pardon. Recently, budget-driven reforms in some jurisdictions are mitigating the harshness of some sentences, and
reformers in some jurisdictions are working hard to develop alternative sentence reduction mechanisms, including opportunities for prisoners to earn additional good time and to obtain
judicial sentence modification. But no similar budgetary link
has yet been made to encourage states to facilitate post-sentence restoration of rights. Federal sentencing has become increasingly rigid as well as severe, and federal forgiveness has for
all practical purposes become a dead letter.
moderation can be identified in the aftermath of highly publicized crimes. This is not entirely surprising, given the evidence, however anecdotal it may be, that appearing soft on
crime can be any political figure’s undoing. Many examples
could be offered. One of the most memorable arose during the
1988 presidential campaign. The release of Willie Horton
from a Massachusetts prison by former Governor Michael
Dukakis became a cause celebre during the race between former Governor Dukakis and Vice President George H.W. Bush.
The Bush campaign ads seized on Horton’s release and subsequent homicide – an undeniable fact – and identified Governor Dukakis as one of those who was “soft” on crime. In
reality, Horton was not released as a result of any action by the
Governor, but rather pursuant to an ordinary prison furlough,
but the significance of this distinction appears to have escaped
the Dukakis campaign. Whether or not the Bush campaign attacks were overdone, they certainly resonated with some people worried about public safety. The Willie Horton episode
drove home what many politicians had recognized for many
years: i.e., liberal use of the pardon power is unlikely to produce strong voter support. The political reality is that there are
few criticisms of officials who say “no” to a clemency request,
and there is considerable risk of political backlash if an offender released by action of the executive commits another
crime. There no doubt have been some bold chief executives
who continued the practice of pardoning to restore rights to
rehabilitated offenders, but by the end of the 20th century even
this attenuated function had atrophied in most jurisdictions.
The federal government led the retreat. Historically stable
pardon grant rates fell dramatically during the Reagan administration, and continued to slide for the ensuing two decades.9
The decline in federal pardoning was, not accidentally, accompanied by a degradation of the process for its administration, so
that clemency policy and clemency recommendations are now
effectively controlled by prosecutors. If federal prosecutors oppose clemency, it is extremely unlikely to be granted. There is
no other generally available remedy for someone who has been
convicted. The only statutory mechanism for federal sentence
reduction is controlled by prison officials, who use it only in
cases of imminent (and certain) death.10 There is no general
mechanism for relief from disabilities imposed on convicted
persons under federal law, either for state or federal offenders.11
In the states, the practice of pardoning varies so widely
that it is difficult to accurately offer many generalizations.
However, two things appear to be true: 1) in almost every jurisdiction the instance of pardoning decreased markedly after
1990; and 2) the vitality of the pardon power in a particular
state jurisdiction varies depending upon the extent to which
its decision-maker is insulated from politics. Thus, pardons
tend to be granted more regularly and generously in the five
states where the pardon power is exercised by an independent
board with no involvement by the governor,12 than it is in the
22 states where the governor exercises the power subject to no
procedural constraints.13 Pardoning tends to be somewhat
more frequent in the ten states where the governor may act
only upon the advice of a board,14 though sometimes the
board doesn’t recommend (Texas)or the governor denies in
spite of a favorable Board recommendation (Arizona) or the
governor doesn’t act at all (Delaware). Ironically, pardon has
B. The Contemporary Need for a Pardoning Mechanism
The Commission concludes that every just system of punishment must include some accessible mechanism for reducing a
prison sentence or mitigating other penalties in extraordinary
circumstances, particularly those that could not be foreseen at
sentencing. Such a safety valve was considered an essential
component of a sentencing scheme prior to the advent of determinate sentencing. Today it remains essential, because no
court is capable of predicting the changed circumstances that
might transform a sentence that appears fair and reasonable at
the time of imposition into a cruel and unreasonable punishment that may have tremendously undesirable side-effects.
For example, a healthy prisoner sentenced to a term of imprisonment may develop a serious or deadly illness not foreseen at the time sentence was imposed; or, an inmate with a
diagnosed illness or condition may suffer a turn for the worse
to a degree unforeseeable at the time of sentencing. Similarly,
80
a particular jurisdiction by which such prisoner requests may
be made, then that mechanism should be the subject of review and evaluation.
Although the federal government has a statutory mechanism in place that would permit consideration of sentence reduction requests, it has been slow to implement it. The
United States Sentencing Commission has yet to promulgate
policy guidance for sentencing courts and the federal Bureau
of Prisons in considering federal prisoner petitions filed under
18 U.S.C. § 3582(c)(1)(A), as directed by 28 U.S.C. §
994(t). The Commission urges that the Sentencing Commission direct its attention at an early date to the only generally
applicable statutory “safety valve” that exists under federal
law. We also urge that, in developing policy guidance, the
Commission incorporate a broad range of medical and nonmedical circumstances warranting sentence reduction for “extraordinary and compelling reasons.” We believe it is
significant that Congress specified that “rehabilitation of the
defendant alone shall not be considered an extraordinary and
compelling reason,” indicating that rehabilitation may combine with other equitable factors to make out the necessary elements of an “extraordinary and compelling” case. We also
recommend that the Department of Justice ensure that full
and fair consideration is given to prisoner requests for sentence reduction, and implement procedures to assist prisoners
who are unable to advocate for themselves, including by reason of mental or physical disability.18
There is another contemporary need and place for the pardon power in a comprehensive criminal justice system: i.e., to
signal that a convicted individual has successfully rejoined the
community and is forgiven. At the time of sentencing, no
court can know with certainty whether the defendant will reform, meet all conditions of the sentence imposed, and commit to a post-sentence life without crime. Those who take
advantage of treatment, education, and counseling and who
reform themselves and become law-abiding members of the
community make a powerful case of entitlement to formal
recognition of their successful reentry. This is as true in a determinate sentence system as in an indeterminate one.
Post-sentence pardons are entirely consistent with determinate sentences based on the notion that the individual who is
punished is receiving just desserts for whatever criminal acts
were committed. A just desserts sentence may well be fair and
appropriate in proportion to criminal conduct, but once that
sentence is served the individual has paid the dues imposed.
Once society has exacted its price from an individual, there is
a strong case to be made that society should not only permit,
but should encourage, that person to make a positive contribution to society. To make this possible, it is vital that, to the
greatest extent practicable, an individual who has successfully
completed a sentence should be permitted to exercise rights of
citizenship and to be relieved of the collateral consequences of
conviction in order to have a real chance of working, providing for family, and avoiding recidivism.
Accordingly, the recommendations presented by the Commission urge jurisdictions to expand the use of the pardon
power, both to commute sentences and to restore legal rights
lost as a result of conviction. Jurisdictions should also make
clear the standards that govern applications for commutation
when a custodial parent is sentenced to incarceration and
leaves young children in the care of other family members, the
death or serious illness of the caretaking family members may
leave the children orphaned if the custodial parent’s sentence
is not modified. In some cases changes in the law that reflect
society’s new view of a particular crime are not made retroactive, leaving prisoners sentenced under an old regime effectively stranded.16 If a sentencing court is permitted to take into
account serious health problems and exigent family circumstances in determining an offender’s sentence in the first instance, it would seem both reasonable and just to provide a
means of bringing these circumstances to the court’s attention
when they develop or become aggravated unexpectedly midway through a prison term. If society’s view of the seriousness
of a crime changes, it would seem fair (if not entirely efficient)
to give those punished under a harsher regime a chance to win
their freedom.
Today, in many determinate sentencing jurisdictions the
pardon process is the only way that prisoners can have their
claims of exigency considered. In such jurisdictions, pardon is
necessary to the just and efficient functioning of the criminal
justice system. But preliminary research indicates that even in
those jurisdictions where the pardon process appears on the
surface to be working efficiently, it rarely produces any grants.17
The Commission also recommends that, in addition to
clemency, jurisdictions adopt a legal mechanism to permit individuals serving prison sentences to obtain a reduction of sentence for “extraordinary and compelling” reasons that were not
foreseen at sentencing and to provide, as broadly as practicable, opportunities for offenders to apply for restoration of rights
and relief from collateral sanctions. One model that could be
considered is that employed by the military services, where
prisoners come up for periodic review by an administrative
board that is empowered to release them using either the parole or pardon authority. Another model is that set forth in 18
U.S.C. § 3582(c)(1)(A)(i), which empowers federal courts to
entertain prison petitions for sentence reduction in certain situations, and is discussed below.
Just last year the ABA House of Delegates approved policy
urging jurisdictions to evaluate their practices and procedures
relating to prisoner requests for reduction or modification of
sentence based on extraordinary and compelling circumstances arising after sentencing, to ensure their timely and effective operation. As part of this same resolution, the ABA
urged jurisdictions to develop criteria for evaluating such prisoner requests, and procedures to assist mentally or physically
disabled prisoners in making them. The Commission believes
that the ABA must do more. Specifically, it should specify the
criteria for sentence reduction in a broad range of exceptional
circumstances arising after imposition of sentence, both medical and nonmedical, including but not limited to old age, disability, changes in the law, exigent family circumstances, and
heroic acts or extraordinary suffering. It also calls upon jurisdictions to ensure that there are procedures in place to assist
prisoners who are unable to advocate for themselves, for example by reason of mental or physical disability. State bars
should take the lead in implementing this resolution, and
specifically endorse more expansive non-medical criteria for
early release. If executive clemency is the only avenue within
81
Endnotes
and pardon; specify the procedures that an individual must follow in order to qualify for a grant of clemency; and ensure that
clemency procedures are reasonably accessible to all persons. In
this fashion, states may share information about “best practices,”
and ensure that the pardon process can work to promote justice
without jeopardizing safety, and to restore its “moral force.”19
Last August, the House of Delegates approved new Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons. To promote the
development of a more consistent and reasonable approach to
collateral consequences, the Commission has encouraged wide
circulation of these Standards, and has discussed the desirability of an implementation project in one or more jurisdictions.20
The Commission believes that state bars can play an important role in encouraging the responsible exercise of the pardon
power by creating programs and training lawyers so that they
may become involved in the pardon process by representing
individual clemency applicants. Bar programs would be capable of advertising the availability of clemency and encouraging
bar members to represent prisoners with meritorious cases, on a
pro bono basis if necessary. Bar programs should encourage
broad participation and not seek to impose an obligation only
upon criminal law practitioners. The ordinary non-capital
clemency case requires neither special skills nor a major commitment of time or resources. Clemency representation should
become a staple in pro bono bar programs. Bar members who
take on clemency representation should be encouraged to propose recommendations for improving the clemency process
and making it more accessible.
The Commission also recommends in its Report and Recommendations on Prison Conditions and Prisoner Reentry
that law schools give consideration to establishing clinics in
which students may gain both understanding and experience
in representing those who have committed crimes and are imprisoned as a result, or who are seeking to reestablish themselves in the free community through restoration of rights.
Law schools and state bars easily could develop coordinated efforts to expand clemency and reentry efforts.
The best way to discourage the potential for mischief in pardoning are to ensure that the process is open to all, that standards for pardon and commutation are clearly articulated and
fairly applied, and that the decision-making process is perceived to be a reliable one. Lawyers are most likely to concern
themselves with these issues if they participate in the process
through representation of prisoners seeking sentence reduction
and released offenders seeking restoration of rights, including
pro bono representations.
By taking an interest in the pardon process, the ABA can encourage a national conversation about the role of forgiveness in
the justice system, and what the need for a pardoning mechanism teaches about the health of the legal system. Bar groups
can reach out to pardon decision-makers, and help create a climate of public acceptance for clemency actions by working with
victims’ rights and other groups with an interest and stake in a
fair, just, compassionate and equitable criminal justice system.
1. See also Dretke v. Haley, __ U.S. __ , slip op. at 2 (May 3,
2004)(Kennedy, J., dissenting)(“Among its benign if too-often ignored
objects, the clemency power can correct injustices that the ordinary
criminal process seems unable or unwilling to consider.”).
2. See 18 U.S.C. § 3582(c)(1)(A)(i). The court’s authority under
this provision to review a prisoner’s petition seeking sentence reduction
depends upon a motion being brought by the Federal Bureau of Prisons
(BOP). In the absence of guidance, BOP has interpreted its mandate
under this statute very narrowly. See note 8, infra.
3. The perceived need for pardon can be a useful barometer of the
health of the legal system. See Kathleen Dean Moore, PARDONS:
JUSTICE, MERCY AND THE PUBLIC INTEREST 129 (1989)(“If
pardons grew to an unmanageable number, one would have to be suspicious that the legal codes were seriously out of kilter with the moral
code.”); Elizabeth Rapaport, Retribution and Redemption in the Operation
of Executive Clemency, 74 CHI. KENT L. REV. 1501, 1534 (while
clemency is “ill-suited as a means to overcome wholesale legislative
failures,” it “may play a role in reopening channels of politics to systemic reform”).
4. James Q. Whitman, HARSH JUSTICE 183 (2003) (hereafter
“Whitman”)
5. Relying upon statistics compiled by philosopher Kathleen Dean
Moore, Professor Whitman notes that “In the period from 1869 to
1900, 49 percent of federal pardon applications were granted, and in
the last five years of the century, 43 percent of federal inmates received
some kind of pardon.” Whitman, supra note 4 at 183, citing Moore,
supra note 2 at 53. A 1939 study of release procedures by the federal
government described pardon as “the patriarch of release procedures.” 3
U.S. Dep’t of Justice, The Attorney General’s Survey of Release Procedures: Pardon 295 (1939).
6. Objections to pardon were philosophical (18th century reformers
like Beccaria objected that pardon interfered with the operation of the
law) and practical (pardons benefited primarily persons of wealth
and/or political connections). Whitman says that “[t]his belief that it
was the well-connected who benefited from pardons was in fact false –
which only makes the strength of the belief more striking.” Whitman,
supra note 4 at 184.
7. Whitman, supra note 4, at 183 (“American officials needed pardoning, and they used it. But doing so touched a raw egalitarian nerve
among Americans, as it would continue to do down to the Clinton pardons of 2000.”)
8. Scholars have proposed competing theories of clemency’s role in a
retributivist system. On the one hand, Kathleen Dean Moore and
Daniel Kobil have posited that clemency should function as an “extrajudicial corrective,” a final court of appeal for persons who have been
unjustly convicted or whose punishment exceeds their just deserts. See
Moore, supra note 2; Daniel T. Kobil,“The Quality of Mercy Strained:
Wresting the Pardoning Power From the King, 69 TEX. L. REV. 569, 613
(1991). In contrast, Elizabeth Rapaport and Margaret Love have argued
that clemency plays a redemptive role that is distinct from justice, and
that governors or clemency commissions are not bound by the same
desert-based considerations as might limit a court. See Rapaport, supra
note 3, at 1519; Margaret Colgate Love, Of Pardons, Politics and Collar
Buttons: Reflections on the President’s Duty to Be Merciful, 27 FORDHAM URB. L. J. (2000).
9. During the Reagan and first Bush administrations there were only
16 commutations, compared to 111 during the preceding 12 years
(Nixon, Ford and Carter), and 348 in the 12 years preceding that
Respectfully submitted,
Stephen Saltzburg, Chairperson Justice Kennedy Commission
August 2004
82
power is administered by an independent Board, and the Governor has
no part in the process. In Oklahoma, the Governor retains the ultimate
power, but the Parole Board effectively makes the release decision.
16. Maryland officials told the Commission that Governor Ehrlich
intends to consider for clemency the cases of some prisoners sentenced
under a draconian “three strikes” law, now repealed, applicable to socalled “day-time burglars.”
For example, in the first three years of his administration, President
Bush granted 11 pardons and no commutations, not quite one grant
apiece for the staff of twelve in the Justice Department’s pardon office.
During this same period, President Bush denied 580 requests for pardon
and 2400 requests for commutation.
The Commission considered recommending that prisoners be allowed to bring petitions for relief under § 3582(c)(1)(A)(i) directly to
the courts, without requiring a motion by the Bureau of Prisons. However, it seemed unnecessary to recommend so drastic a change in current practice before the other recommended reforms have been
attempted, and potentially burdensome to courts.
The Commission’s inquiry into the functioning of the pardon process
in a number of states suggests that frequent and regular consideration of
cases, along with careful staffing, are essential elements of a credible and
reliable pardon process. Other important elements appear to be a formal
advisory role for a politically accountable official or officials, and an appropriate balance of confidentiality prior to grants and openness after
them. For example, the Commission was informed by Maryland officials
familiar with that state’s clemency process that Governor Robert Ehrlich
has established a regular routine of monthly meetings in which he gives
personal attention to about twenty clemency cases, which have been reviewed by the parole board and then by a member of his personal staff.
In each case the prosecuting attorney has also been asked to make a recommendation, and in appropriate cases the sentencing judge as well.
Pardon grants are announced to the press, and memorialized in an executive order giving details of the offense and the terms of relief. Governor
Ehrlich has evidenced a strong personal commitment to the exercise of
his clemency power, and has gone so far as to initiate his own inquiry
into the cases of certain incarcerated individuals serving long sentences
imposed under a law that was subsequently changed.
20. For example, in the fall of 2004 a symposium at the University
of Toledo Law School will feature scholarly presentations measuring
Ohio law and practice against the requirements of the Collateral Sanctions Standards. It will include a student project to identify and analyze
collateral consequences under Ohio law. An ABA project could build
on this symposium. In addition, the New Jersey Institute for Social Justice published a study of collateral consequences in New Jersey that discuses the new ABA Standards in a number of contexts. See Nancy
Fishman, Legal Barriers to Prisoner Reentry in New Jersey, prepared for
the New Jersey Reentry Roundtable (April 11, 2003). New Jersey agencies are currently engaged in an effort to identify and codify all collateral sanctions in state law, and have asked the ABA to provide
technical assistance.
(Eisenhower (2), Kennedy and Johnson). President Clinton had
granted only 21 commutations prior to the very end of his term, while
President George W. Bush has granted none at all since he took office.
Post-sentence pardons also declined, from just under 2000 in each of
the two twelve-year periods from 1956-1968 and 1969-1980, to 467 between 1980 and 1992. Bill Clinton issued more than half of his 398 pardons on his last day in office. By the end of his third year in office,
George W. Bush had granted 11 pardons, and denied 601 applications
for pardon.
10. Under 18 U.S.C. § 3582(a)(1)(A), the sentencing court may reduce a defendant’s sentence at any time upon motion of the Director of
the Bureau of Prisons, for “extraordinary and compelling reasons.” According to the statute that directs the United States Sentencing Commission to promulgate policy guidance for courts considering such
motions, 28 U.S.C. § 994t, “rehabilitation of the defendant alone shall
not be considered an extraordinary and compelling reason.” The Commission began a study of the issues in anticipation of issuing policy
guidance in 2003, at the urging of the ABA Criminal Justice Section’s
Corrections and Sentencing Committee, but at the time of this writing
had issued no proposals for comment. See Mary Price, “The Other
Safety Valve: Sentence Reduction Motions under 18 U.S.C. §
3582(c)(1)(A),” 13 FED. SENT. RPTR. 188 (2001).
11. See Margaret Colgate Love, Starting Over With a Clean Slate: In
Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM
URB. L. J. 101 (2003). A few federal statutes specifically give effect to
state provisions for pardon or restoration of rights. For example, under
the Firearms Owners Protection Act of 1986, state convictions that
have been expunged, set aside, or pardoned, or for which a person has
had civil rights restored, do not constitute “convictions” for purposes of
prosecution as a felon in possession. 18 U.S.C. § 921(20) (2000); James
W. Diehm, Federal Expungement: A Concept in Need of a Definition,
66 ST. JOHN’S L. REV. 73, 99 (1992). In certain cases, an alien may
avoid deportation based on conviction if he is pardoned. See Elizabeth
Rapaport, The Georgia Immigration Pardons: A Case Study in Mass
Clemency, 13 FED. SENT. REP. 184, 184 (2001).
12. Alabama, Connecticut, Georgia, Idaho and South Carolina. In
Georgia and South Carolina, the board of pardon grants more than half
of the petitions for a post-sentence pardon that it receives. In another
six states (Utah, Florida, Minnesota, Nebraska, Nevada and North
Dakota), the Governor sits as one member of the clemency board.
13 In 13 of these 22 states the Governor may but is not required to
seek the advice of a board (generally the Parole Board). In the other
nine, and in the federal system, the chief executive’s power is subject to
no legal constraints at all.
14. Arizona, Delaware, Indiana, Maine, Massachusetts, Montana,
Oklahoma, Pennsylvania, Rhode Island, Texas. In another seven states
(Arkansas, Illinois, Iowa, Kansas, Michigan, New Hampshire, and
Ohio), the governor is required to seek a board’s advice, but may override its negative recommendation.
Georgia and Oklahoma, for example, appear to treat parole and commutation decisions more or less interchangeably. In Georgia, the pardon
83
amer ican bar asso ciation
Justice Kennedy Commission
IV. Report to the House of Delegates on Prison
Conditions and Prisoner Reentry
Recommendations
disqualified from otherwise available benefits and opportunities, including employment, to the greatest
extent consistent with public safety.
RESOLVED, That the American Bar Association urges states,
territories and the federal government to ensure that prisoners
are effectively supervised in safe, secure environments; that
correctional staff are properly trained and supervised; and that
allegations of mistreatment are promptly investigated and are
dealt with swiftly and appropriately.
FURTHER RESOLVED, That the American Bar Association
urges states, territories and the federal government to prepare
prisoners for release back into the community by implementing policies and programs that:
(1) from the beginning of incarceration, provide appropriate programming, including substance abuse treatment, educational and job training opportunities,
and mental health counseling and services; and
(2) encourage prisoner participation by giving credit toward satisfaction of sentence for successful completion of such programs.
FURTHER RESOLVED, That the American Bar Association
urges law schools to establish reentry clinics in which students
assist individuals who have been imprisoned and are seeking to
reestablish themselves in the community, regain legal rights, or
remove collateral disabilities.
Report
As we explain in our Report and Recommendations on Punishment, Incarceration and Sentencing, Justice Kennedy did not
simply ask the American Bar Association to look carefully at the
rate of incarceration in American jurisdictions and the racial
and ethnic composition of our prison populations; he also asked
the ABA to inquire into the “inadequacies – and the injustices
– in our prison and correctional systems.” He observed that the
legal profession has an “obsessive focus” on the process for determining guilt or innocence, to the exclusion of what happens
after the prisoner is taken away: “When the door is locked
against the prisoner, we do not think about what is behind it.”
Noting Professor James Whitman’s charge that “the goal of the
American corrections system is to degrade and demean the prisoner,” Justice Kennedy specifically asked the ABA to “help start
a public discussion about the prison system.”
President Archer echoed Justice Kennedy’s words when he
appointed this Commission. Neither Justice Kennedy nor
President Archer suggested that the discussion could be completed in a year, and the Commission members knew from the
outset that it was no easy matter just to begin the discussion
and the discussion, once begun, might extend for many years.
How could it be otherwise? After more than two hundred years
of imposing punishment, it is unclear what lessons America
has learned about corrections and incarceration. It is difficult
even to develop a full understanding of what actually occurs in
prisons throughout the country. There are ideas afloat but little consensus as to what makes prisons more or less civilized,
what opportunities prisons ought to provide to those incarcerated, and how prisons can best prepare inmates to lead lawabiding lives when they return to society.
Justice Kennedy expressed a concern that prison conditions
are degrading and likely to lead inmates to continue criminal
activity when released. Identifying this concern as important,
FURTHER RESOLVED, That the American Bar Association
urges states, territories and the federal government to assist
prisoners who have been released into the community by implementing policies and programs that:
(1) establish community partnerships that include corrections, police, prosecutors, defender organizations, and
community representatives committed to promoting
successful reentry into the community and that measure
their performance by the overall success of reentry; and
(2) assist prisoners returning to the community with
transitional housing, job placement assistance, and
substance abuse avoidance.
FURTHER RESOLVED, That the American Bar Association
urges states, territories and the federal government, in order to
remove unwarranted legal barriers to reentry, to:
(1) identify collateral sanctions imposed upon conviction and discretionary disqualification of convicted
persons from otherwise generally available opportunities and benefits;
(2) limit collateral sanctions to those that are specifically
warranted by the conduct underlying the conviction,
and prohibit those that unreasonably infringe on fundamental rights or frustrate successful reentry; and
(3) limit situations in which a convicted person may be
84
major programs were the National Volunteer Parole Aide Program, the BASICS (Bar Association Support to Improve Correctional Services) program, and the Resource Center on
Correctional Law and Legal Services.1
Yet, for all of the resources and energy and talent devoted to
its work, it appears that the ABA Commission on Correctional
Facilities and Services left little lasting impression on the legal
landscape, and its work was all but forgotten in the crime war of
the 1980’s. Given the almost obsessive focus for the last twenty
years on increasing the number of people in prison and expanding the prison infrastructure, we probably should not have been
as surprised as we were by the magnitude of the present problem, and the extent to which it has been institutionalized. To
put the point concisely, the problem is that correctional systems
too often fail to do any correcting. They warehouse inmates,
and in the process may actually increase the chances that prisoners, once released, will be neither equipped nor inclined to
conform their conduct to the law. Current correctional policies
enlarge the cadre of people permanently at the fringes of society, and create a prison infrastructure that depends upon a continuing stream of new prisoners.
Although it came as no surprise to us that most people have a
generally unsympathetic response to convicted felons, the Commission became acutely aware of an irony that is readily apparent
in our treatment of men and women sentenced to prison: i.e., the
public expects convicted felons to learn their lesson and become
law-abiding citizens, while the legal system burdens them with
continuing collateral disabilities that make it very difficult, if not
practically impossible, for them to successfully reintegrate into
the free community. To the extent that the legal system has itself
been complicit in creating this class of “internal exiles,” it is incumbent on the legal profession to try to remedy it.
Justice Kennedy’s expressed concern about the degradation of
the prison experience seems intuitively correct, since no matter
how well-managed and funded a prison system may be, loss of
freedom and all it entails, as well as the social stigma of conviction, must weigh heavily on most prisoners. That said, evidence
of dangerous living conditions or correctional staff mistreatment
of prisoners has not been systematically collected at a national
level, and abuse appears more severe in some state systems than
in others.2 Prison administrators say there have been sweeping
improvements in recent decades, with widespread acceptance
that abusive behavior is unacceptable and that proper procedures can minimize it. Advocates for reform and former inmates, however, say a culture of violence persists and is made
worse because of tacit acceptance by administrators, politicians
and the public. Concerns have been expressed about such issues
as medical and mental health services, prison rape, substance
abuse treatment and counseling, job training opportunities,
prison visiting policies, and the use of “super-max” facilities. Yet
the restrictions on prisoner lawsuits in the 1995 Prison Litigation Reform Act have limited the courts’ oversight of prison
conditions, and it is not clear what effect this law might have
had in bringing back some of the abusive conditions that led to
federal injunctions and continuing oversight of prison management by federal courts in some states.
In its hearing in Sacramento in April of 2004, the Commission heard testimony from officials and prison advocates alike
about the documented cases of abuse in California prisons that
President Archer, in his charge to the Commission, asked us
examine a number of issues raised by incarceration as a crime
control strategy, including whether prison conditions are unacceptably dehumanizing and degrading, and more likely to encourage than reduce future crime. He asked us to consider
whether prisoners returning home are welcomed and supported
in their efforts to reestablish themselves, or shunned and allowed to drift back into their old ways; the extent to which the
legal system is complicit in discouraging offenders’ efforts to
go straight; and to report on current research into the causes
of recidivism.
The Commission set a goal of understanding the issues; describing them for the American Bar Association; and mobilizing
this body to continue the discussion that we have begun, to take a
real interest in the many thousands of men and women we imprison every year, and to assume responsibility for the correctional
institutions our legal system has created and maintained. When
we complete our work, the discussion will have only begun. This
Association must commit itself to continuing that discussion.
When the Commission began to prepare for its first hearing in
November of 2003, none of its members – including its criminal
practitioners – was totally familiar with the facts and figures we
considered relating to corrections law and practice, recent research into the causes and effects of increased reliance on incarceration, or the legal rights of prisoners. Some of our members
had greater knowledge than the average citizen, or the average
lawyer, but even they lacked detailed information concerning the
controversies over the impact of incarceration on crime rates, the
collateral effects of imprisonment on families and communities,
the net-widening effect of intensive supervision strategies, and
the efficacy and cost-effectiveness of treatment alternatives to
confinement. We knew that the prison infrastructure had grown
exponentially since the early 1980s, and as we did our work we
saw that state budget deficits have begun to encourage legislators
to get “smart on crime” by reducing their prison populations (or,
in a few states, cutting prison programming).
The issue of correctional reform is not a new one, and this
is not the first time that the bar has been called upon to address it. In the course of its work, the Commission was instructed by the work of an earlier ABA Commission, also
called into being by a Supreme Court Justice’s speech about
the need for reform of the corrections system. In 1969, Chief
Justice Warren Burger urged the ABA, in a speech at its 1969
Annual Meeting, “to assume leadership in a comprehensive
examination of the penal system.” He too made this a responsibility of all lawyers and judges, not just those already involved in a criminal practice. In response, the ABA Board of
Governors and the House of Delegates created the Commission on Correctional Facilities and Services, an interdisciplinary body conceived as an action-oriented analogue to the
then-newly created Criminal Justice Standards Committee.
The Commission was chaired for its first five years by Richard
Hughes, former governor and later Chief Justice of the State of
New Jersey, and later by ABA legend Robert McKay. The
Commission carried out its work through a number of separate
action programs and information clearinghouse projects, for
which it secured more than $15 million in grants from governmental and private sources over the eight years of its existence.
At one point, it had thirty paid staff members. Among its
85
convictions from participation in a wide variety of federal programs and benefits, including food stamps, housing, insurance,
educational assistance, parenting, and drivers’ licenses.
The Commission also heard persuasive testimony that strict
parole and probation revocation policies, as well as unnecessarily
lengthy periods of supervision in the community, may actually be
widening the prison net and thus working at cross-purposes with
efforts to control population growth. In California, for example,
parole revocation policies have resulted in a revolving door in
and out of prison for thousands of people, so that many of them
are truly doing “life on the installment plan.”9
The Commission has concluded that Justice Kennedy and
President Archer were right to focus attention on the state of our
correctional system. For far too long, there has been the absence
of a national conversation about how to cope with the inevitable
downstream effects of the “race to incarcerate” in the 1980s and
90s. That conversation has at long last begun, and it is a bipartisan discussion. As the Commission’s report was being finalized,
the disclosures of prisoner abuse by American soldiers in Iraq,
some of whom had been prison guards in civilian life, have
turned the spotlight on conditions in our own prisons.10 And, as
President Bush noted in his 2004 State of the Union address, almost all prisoners eventually do return to the community, and
their ability to establish themselves successfully as law-abiding
citizens should, therefore, be a matter of considerable interest to
communities across the Nation. Prison conditions and prisoner
reentry are a matter of public safety as well as sound public policy.
The Commission concludes that, where prison conditions
and reentry are concerned, three steps need to be taken: 1)
prison conditions must be safe and humane, for prisoners and
staff alike; 2) prison programming must be developed and implemented to help prisoners prepare for their return to the free
community; and 3) the legal system must be scrutinized to ensure that it does not itself aggravate the problem of reentry by
presenting criminal offenders with insuperable obstacles to
reintegration into the community. If the legal system is preventing prisoners from obtaining a true second chance, the alternative for them may be a return to criminality.
Three essentials must coexist if prisoners are to have a genuine second chance. First, prisons must provide resources to
assist prisoners in preparing for freedom and coping with the
responsibilities it entails. Second, the community must be
ready to accept them upon appropriate terms. These first two
essentials go hand in hand. The community is likely to be
skeptical about returning former offenders until prisons
demonstrate that they are preparing former offenders to succeed in freedom. Third, the legal system must support former
offenders and eliminate barriers to successful reentry. The
fewer the impediments to reentry, the greater will be the opportunities for success. Barriers to employment, education,
housing, treatment, and generally available public benefits
must be eliminated to the greatest extent possible. The legal
system may need to draw on the skills of other disciplines to
provide treatment and training before a prisoner’s release and
support during the first months at home. It may need to develop and rely upon risk assessment techniques in making release decisions, and in assisting offenders to cope with the
issues most likely to trip them up upon reentry. But there are
also issues that are entirely within the domain of the law that
led Governor Schwartzenegger to appoint a blue ribbon commission chaired by former Governor Deukmejian to investigate
and make recommendations about reforms in correctional administration. Witnesses testified to the absence of programming
that would prepare prisoners for release, and the predictably
high rates of return to prison by parolees. Over 70 per cent of
those entering prison in California each year come by way of administrative revocation of probation or parole, most often for
minor technical violations as opposed to new criminal activity,
rather than a new court commitment. On the other hand, serious new criminal activity by a parolee or probationer is often
treated as a violation of release conditions, so that confirmed
criminals may return to the community after only a few months.
Prisoners in California prisons, particularly women, have a difficult time obtaining competent and humane medical care. Roderick Hickman, the newly appointed Secretary of Youth
Authority and Corrections Administration, acknowledged a
“cultural disconnect” between those responsible for operating
prisons on a day-to-day basis, and prisoners and the communities from which they come and to which they will return.
The research that has been done confirms that being sent to
prison has a negative effect on offenders’ later income, employment prospects, and family involvement, all of which is predictive of future criminality. The effect on prisoners’ spouses and
children is less certain, but is also likely to be negative. Finally,
as to the larger community, prison expansion has had quite different effects on the communities that benefit economically
from it, and those that it fragments and impoverishes.3
Spurred initially by budgetary concerns, a number of states
have been developing alternatives to incarceration, particularly
for the high percentage of prisoners whose offenses are linked to
substance abuse.4 There is also evidence that many state jurisdictions have recently been willing to consider and approve that
early release of inmates as a way to reduce budget deficits and
control spending.5 These early release programs, while often
driven by the common concern about resources, operate quite
unevenly from state to state. From what we have been able to
determine, there is a consistent effort made by states considering
early release to reduce inmate populations without necessarily
cutting back on prison programming. Some prison systems are
beginning to focus on the importance of developing programs to
prepare prisoners for reentry, and to support them ion the first
critical weeks after their return to the community.6 Research has
identified the moment of “hand-off,” when a prisoner is released
back into the community, as a critical time when the offender
needs support in order to avoid slipping back into old patterns,
and committing new crimes. Yet in many states the traditional
send-off of “$50 and a bus ticket” seems still to be the norm.
Prisoners who are “handed off” expect that they have
moved from incarceration to freedom, but their freedom brings
with it a host of restrictions and constraints not imposed upon
the general population. The legal system imposes collateral
penalties on convicted felons that are difficult and sometimes
impossible to shake off, and social norms invite open discrimination.7 Because the number of people with criminal convictions has risen so rapidly in recent years, collateral penalties
have become one of the most significant methods of imposing
a continuing social stigma and diminished legal status in
America.8 Federal laws encourage states to exclude people with
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opposed to the number of revocations, a community increases
the probability that of successful reintegration of offenders into
the community, and thus the level of public safety.
If each of the official stakeholders in the partnership measures performance by the overall success of prisoner reentry, the
partnership will work together to do what is required to promote successful reentry. They will identify the problems that
released prisoners face, and they will make efforts to assist released prisoners with transitional housing, job placement assistance, and substance abuse avoidance.
The Commission also strongly recommends that jurisdictions take steps to reduce or eliminate legal barriers to reentry
so that only those necessary for public safety remain. As a first
step, jurisdictions should identify the legal barriers to reentry,
including both collateral sanctions imposed upon conviction
and discretionary disqualification of convicted persons from
otherwise generally available opportunities and benefits. They
should limit collateral sanctions to those that are specifically
warranted by the conduct underlying the conviction, and
eliminate entirely those that unreasonably infringe on fundamental rights or serve only to frustrate successful reentry.
Perhaps the most important step that a jurisdiction can take is
to limit the situations in which a convicted person may be disqualified from otherwise available benefits and opportunities, including employment, to the greatest extent consistent with
public safety. This requires an educational program directed not
only at public officials and employers, but also at the private sector. Jurisdictions should consider expanding their pardon process,
or establishing a process by which returning offenders may obtain
a certificate of good conduct, whose effect would be to remove all
collateral disabilities that limit employability and other opportunities.11 It seems intuitively plausible that most across-the-board
employment bans based on conviction records are unnecessary to
assure public safety, and that a system of case-by-case determinations would not be too difficult to administer.12
Jurisdictions must also recognize that there also are practical
rather than legal hurdles facing former offenders who try to succeed in reentry. For example, employers who could hire former
offenders may be reluctant to do so because of liability concerns.
These practical hurdles must not be ignored, although developing
a plan to deal with them may be extremely difficult. If there is a
commitment to supporting reentry, innovations may be possible.
If, for example, the pardon power were reinvigorated , as we recommend, a jurisdiction might consider providing an affirmative
defense – reliance on a pardon grant —to any employer alleged to
be negligent or otherwise culpable for hiring a former offender.
Finally, the Commission recommends that law schools establish clinics in which students may gain both understanding and
experience in representing those who have committed crimes
and are imprisoned as a result, or who are seeking to reestablish
themselves in the community through restoration of rights. In
the course of their clinic work, students could also have an opportunity to work with the victims of crime, and seek to encourage a community dialogue about rehabilitation and
reintegration. Such clemency and reentry clinics may educate
the lawyers of tomorrow to the problems of the least among us.
The goal of these recommendations is to ensure humane
conditions of confinement for prisoners, to avoid recidivism,
and to maximize the chances that former prisoners will work,
must be addressed, including in particular parole revocation
and supervision policies and collateral sanctions.
Accordingly, our recommendations are that jurisdictions
should review their correctional policies and practices (as California is presently doing) to ensure that offenders are effectively
supervised in safe, secure environments; that correctional staff
are properly trained and supervised; and that allegations of mistreatment are promptly investigated and dealt with swiftly and
appropriately. Further, jurisdictions must take steps to prepare
prisoners for release back into the free community beginning
from the time they first report to prison (as Maryland is
presently doing), including but not limited to substance abuse
treatment, educational and job training opportunities, and
mental health counseling and services. Prisoner participation
in such programs should be encouraged by giving credit toward
satisfaction of sentence for successful completion of such programs. Finally, it is essential that correctional officials work
with those responsible for community supervision to assist offenders returning to the community with transitional housing
and job placement assistance. Correctional officials need to
have a stake in the success of prisoners returning to the community, not a vested interest in their returning to prison.
The Commission was impressed by the evidence it saw of a
change in law enforcement attitudes toward reentry and the relationship of law enforcement to offenders. For many years in
many communities, when offenders were released on probation,
parole or after serving sentences, police, prosecutors and probation and parole officers tended to view themselves as adversaries
of the offender. Law enforcement officials tended to look for a
reason to send offenders back to prison rather than considering
ways of assisting them to reintegrate into the community. In
many places, the old approach is changing as law enforcement
officials recognize that successful reentry means not only that an
offender will avoid reincarceration; it means that the offender
contributes positively to the community rather than commits additional crimes, and that by eliminating criminal acts there will
be fewer victims of crime. We heard testimony in California that
prosecutors and police work with offenders and the community
to help offenders reclaim their place in the community. Their
approach is proactive and supportive, and it is working.
Reentry is not easy for many offenders. Substance abuse,
poor job training, and other personal characteristics may complicate the task of moving from prison to freedom. But, the
chances that reentry can be successful increase if correctional officials understand that their job is to begin to prepare an offender for release, and law enforcement officials join with the
offender and the community upon release to continue to assist
with reentry. A true partnership is needed for there to be a
promise of success. To succeed, that partnership must value
reentry and be prepared to measure the performance of all members by how well they succeed in promoting effective reentry.
Probation and parole officers, for example, must understand that
they are most effective and most successful when, working in
partnership with others, they enable more offenders to avoid recidivism and reincarceration. Performance measures for probation officers should be based upon the number of probationers or
parolees who successfully complete their community supervision
rather than by the number of revocations or disciplinary measures. By measuring performance in terms of successful reentry as
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pay taxes, rear families and become contributing members of
their communities. To this end, they seek to enlist members of
the legal profession in the important work of removing unreasonable legal barriers to reentry. Reducing recidivism means
fewer victims, less crime and less imprisonment. It is win-win
for the successfully integrated former prisoner and the community to which that person returns. Successful reentry means
that an individual, whose crime and incarceration disrupted the
social fabric and imposed upon the community the costs of the
crime and the punishment, will add value to the community
and serve as a constant reminder that we are indeed a nation of
second chances for those who violate the law. It also recognizes
what Justice Kennedy described as “the Gospels’ promise of
mitigation at judgment” for those who concern themselves with
how prisoners are treated, and who are willing to play some part
in welcoming them back to the community upon their release.
web site, http://www.urban.org/content/PolicyCenters/Justice/
Projects/PrisonerReentry/overview.htm. The Commission was particularly impressed by what it learned from Maryland’s Secretary Saar about
the efforts underway in that state to implement drug treatment programs
in prison, and to begin reentry programming at the moment a prisoner
enters the system. See David Nitkin, Ehrlich set to sign bill to expand prisoner drug treatment, Baltimore Sun, May 11, 2004.
7. The Legal Action Center has recently published a 50-state survey
of selected legal barriers to reentry, including how each state has responded to federal laws authorizing but not requiring them to bar persons with criminal records from certain benefits and opportunities. See
After Prison: Roadblocks to Reentry, A Report on State Legal Barriers Facing People with Criminal Convictions, http://www.lac.org/lac/index.php
(hereafter “Roadblocks”). A few states, like New York, have laws forbidding discrimination on the basis of a criminal conviction, but it is
not clear what effect such laws have on offender opportunities since it
is likely that they are difficult to enforce.
8. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Prevalence
of Imprisonment in the U.S. Population, 1974-2001 (2003) (estimating
that in 2001, 5.6 million or 2.7% of adult Americans had served a term
in prison, more than double the percentage in 1974). Jeremy Travis has
reported that “[a]n estimated 13 million Americans are either currently
serving a sentence for a felony conviction or have been convicted of a
felony in the past.” See Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE SOCIAL
COSTS OF MASS IMPRISONMENT19 (Meda Chesney-Lind &
Marc Mauer, eds. 2002), (citing Christopher Uggen et al., Crime Class
and Reintegration: The Scope of Social Distribution of America’s
Criminal Class (paper presented at the American Society of Criminology meetings in San Francisco, Cal. (Nov. 18, 2000)).
9. See, e.g., “Back to the Community: Safe and Sound Parole Policies,”
Report of the Little Hoover Commission, November 2003, documenting
the failure of California’s correctional system to prepare prisoners for reentry and its easy resort to parole revocation. The Commission heard testimony from Michael Alpert, Chair of the Little Hoover Commission, who
spoke of the same “disconnect” between prison administrators and parole
officials, and the communities to which prisoners return.
10. See note 2, supra.
11. According to the Legal Action Center’s “Roadblocks” report, see
note 4, supra, six states (Arizona, California, Illinois, Nevada, New Jersey and New York) offer certificates of rehabilitation that remove occupational and licensing bars resulting from a conviction and create a
presumption of rehabilitation. The Commission found that a number
of other states, including Alabama, Georgia, Connecticut, Nebraska,
and South Carolina, have an administrative pardon system that offers
essentially the same sort of relief. Many states and the federal government have a pardon process in place that could provide this relief, but
at present does not, largely because of a reluctance on the part of the
chief executive to appear “soft on crime.”
12. According to the Legal Action Center’s “Roadblocks” report,
note 4, supra, Kansas and Hawaii require all employers to make individual determinations where employment of convicted persons is at issue.
Kansas requires that a conviction be reasonably related to the applicant’s trustworthiness or the safety or well-being of employees or customers in order to serve as a basis for excluding an applicant for
employment. See KAN. STAT. ANN. § 22-4710(f). Similarly, Hawaii
allows employers to consider only recent criminal convictions that are
rationally related to the employment, and only after a conditional offer
of employment has been made. See HAW. REV. STAT. § 378-2.5.
Respectfully submitted,
Stephen Saltzburg, Chairperson Justice Kennedy Commission
August 2004
Endnotes
1. During the course of its existence, the Commission produced a
number of studies and reports. Its final report is available from the
Criminal Justice Section Office. See “When Society Pronounces Judgment – The Work of the Commission on Correctional Facilities and
Services. Five Year Report, 1970-1975.”
2. The abuse of Iraqi detainees by American military police came to
light just as the Commission was finalizing its report, and provoked calls
for a closer look at domestic prison conditions. The New York Times editorial page noted recent reports of domestic prisoner abuse, and called for
the development of “national prison standards” and “an independent
body that enforces them.” See Editorial, The Dark Side of America, N.Y.
Times, May 17, 2004. See also Fox Butterfield, Mistreatment of Prisoners Is
Called Routine in U.S, N.Y. Times, May 8, 2004 (discussing documented
reports of prisoner abuse in state prison systems); Jenifer Warren, State
Penal System is Hammered in Report, LA Times, January 16, 2004 (discussing report filed by federal Special Master John Hagar). A book-length
study of American prison conditions by Alan Elsner was published too
late for consideration by the Commission. Alan Elsner, GATES OF INJUSTICE: THE CRISIS IN AMERICA’S PRISONS (2004).
3. See Marc Mauer & Meda Chesney-Lind, Invisible Punishment:
The Collateral Consequences of Mass Imprisonment, Parts IV and V
(2002); John Hagan and Ronit Dinovitzer, Collateral Consequencs of
Imprisonment for Children, Communities, and Prisoners, in Michael
Tonry & Joan Petersilia, Prisons Vol 26, at 121 (1999).
4. See, e.g., John Wool & Don Stemen, Vera Institute of Justice,
CHANGING FORTUNES OR CHANGING ATTITUDES? SENTENCING AND CORRECTIONS REFORMS IN 2003 (March
2004). Mary Ann Saar, Maryland’s Secretary for Criminal Justice, told
the Commission that over 80% of Maryland’s prisoners have a substance abuse problem, and this figure seems consistent with reports
from other jurisdictions.
5. See Judith Greene, SMART ON CRIME: POSITIVE TRENDS IN
STATE-LEVEL SENTENCING AND CORRECTIONS POLICY(2003)
http://www.famm.org/nr_sentencing_news_trends_report_11_03.htm.
6. Much recent research on prisoner re-entry has been conducted by
the Washington-based Urban Institute. Studies on the experience in
Illinois, Maryland, New Jersey, and Ohio, can be found on the institute’s
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